European Court of Human Rights

FIRST SECTION

CASE OF GURBANOV AND MAMMADOV v. AZERBAIJAN

(Application no. 20605/13)

JUDGMENT
 

STRASBOURG

12 October 2023

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

In the case of Gurbanov and Mammadov v. Azerbaijan,

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

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 20605/13) 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") on 26 February 2013 by two Azerbaijani nationals, Mr Mammad Mammad oglu Gurbanov (Məmməd Məmməd oğlu Qurbanov - "the first applicant") and Mr Nadir Ali oglu Mammadov (Nadir Əli oğlu Məmmədov - "the second applicant"), who were born in 1953 and 1980 respectively, live in Baku, and were represented by Mr K. Bagirov, a lawyer based in Azerbaijan;

the decision to give notice of the complaints concerning Articles 3 and 5 § 3 of the Convention to the Azerbaijani Government ("the Government"), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the parties' observations;

Having deliberated in private on 19 September 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicants' alleged ill-treatment by law-enforcement officers, the lack of an effective investigation into those allegations and the lack of justification for the application of the preventive measure of pre-trial detention in respect of them.

1. THE APPLICANTS' ARREST AND ALLEGED ILL-TREATMENT

2.  On 7 December 2012 the applicants, who had a small business in Nakhchivan, arrived, from the Turkish side, at the Sadarak customs point situated between Azerbaijan and Türkiye with their car loaded with goods.

3.  According to the applicants, on 8 December 2012 customs officers asked them for a bribe for carrying out the customs formalities relating to the import of their goods. They refused to pay the bribe and informed the media.

4.  Later that day, they returned to the customs point accompanied by a human rights defender (I.N.) and a journalist (E.A.) to retrieve their goods. According to the applicants, upon their arrival at the customs point, they were physically assaulted by approximately twenty customs officers. The customs officers then let E.A. and I.N. leave the area but arrested the applicants. The first applicant was transferred to the custody of the police, while the second applicant was at first allowed to leave the area before also being arrested by the police that night and taken to the Sadarak District Police Department ("the SDPD").

5.  According to the Government, following a lawful request by customs officers for the applicants to unload their cargo after they had failed to submit the necessary documentation, the applicants had attacked the customs officers, inflicting injuries to two of them.

6.  According to the applicants, from 8 to 11 December 2012 they had been ill-treated in the SDPD. In particular, the police officers had removed their clothes and kept them naked outside. Their hands had been handcuffed behind their heads and they had been forced to keep their legs wide open. The police officers had also hosed their feet with cold water. The first applicant had been deprived of food for three days. The second applicant had lost consciousness on three occasions as a result of torture and the police officers had had to call for an ambulance several times.

2. INSTITUTION OF CRIMINAL PROCEEDINGS AGAINST THE APPLICANTS AND THEIR PRE-TRIAL DETENTION

7.  On 10 December 2012 the Sadarak District Prosecutor's Office instituted criminal proceedings against the applicants for the use of violence against State officials on the basis of material provided by the SDPD and the following day they were charged with the said offence. Later charges of hooliganism were added.

8.  On 10 December 2012 the prosecutor issued decisions on the applicants' arrest and the next day, in two separate decisions, the Sadarak District Court remanded the applicants in custody for a period of two months. The court justified the remand in custody by the gravity of the charges, the fact that the applicants had been charged with an offence punishable by more than two years' imprisonment, and the likelihood that, if released, they might abscond and obstruct the investigation. It did not, however, give any reasons as to why it considered those grounds relevant to the applicants' case, nor did it mention any case-specific facts relevant to those grounds.

9.  Following appeals by the applicants, on 17 December 2012 the Supreme Court of the Nakhchivan Autonomous Republic ("the SCNAR") upheld the first-instance court's decisions.

10.  During the course of the investigation, the applicants lodged requests asking the courts to replace their remand in custody with house arrest. However, the courts dismissed their requests, finding that there was no need to change the preventive measure.

11.  It appears that on 13 February 2013 the first-instance court convicted the applicants and sentenced them to imprisonment. Subsequently, the appellate court upheld the convictions but lowered the sentences to suspended sentences of two and three years' imprisonment respectively.

3. REMEDIES USED BY THE APPLICANTS IN RESPECT OF ALLEGED ILL-TREATMENT

12.  In the meantime, on 24 December 2012 the applicants' lawyer visited them. According to the lawyer, there were visible signs of ill-treatment on the second applicant's body and, in particular, there was a haematoma of 10 cm on the inside of his right leg. The lawyer immediately informed the prosecutor orally of the ill-treatment and asked that an effective investigation be carried out.

13.  The lawyer subsequently wrote to the prosecutor requesting a medical examination of both applicants and the initiation of a criminal investigation into their alleged ill-treatment.

14.  On 9 January 2013 the prosecutor rejected the lawyer's request for a medical examination of the applicants and for the investigation of their alleged ill-treatment. He noted that on 13 December 2012 the second applicant had been examined by a medical expert, who concluded that there were no injuries on his body. The prosecutor also stated that the first applicant had not previously raised the issue of ill-treatment during his questioning within the framework of the criminal case against him.

15.  On 15 January 2013 the lawyer lodged a complaint with the Sadarak District Court complaining of the applicants' ill-treatment. He submitted that on 24 December 2012, during his meeting with the applicants, he had seen signs of ill-treatment on the second applicant's body. He further relied on photographs of the second applicant taken after the incident with the customs officers and statements by both the applicants, as well as the statements of I.N. and E.A.

16.  On 18 January 2013 the District Court dismissed the claim, finding that it should not be examined by the court. It did not specify what authority should examine the complaint.

17.  On 28 January 2013 the SCNAR dismissed an appeal by the applicants as unsubstantiated.

4. COMPLAINTS

18.  The applicants complained under Article 3 of the Convention that they had been tortured in police custody and that the domestic authorities had failed to investigate their allegations of torture. They also complained under Article 5 § 3 of the Convention that the domestic courts had failed to justify the application of the preventive measure of their remand in custody and had rejected, without giving any reason, their request for the replacement of remand in custody by house arrest.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

19.  The Government submitted that the applicants had failed to exhaust domestic remedies, because they had not challenged the prosecutor's decision of 9 January 2013 rejecting the request from the applicants' lawyer for a medical examination of the applicants and an investigation into their allegations of ill-treatment, without specifying which exact remedies the applicants had failed to pursue.

20.  The Court considers that this argument is irrelevant, because the prosecutor's decision was a particular procedural action and not one that an applicant should be expected to challenge in order to exhaust domestic remedies, such as a refusal to institute a criminal inquiry or the termination of a criminal inquiry (see Jannatov v. Azerbaijan, no. 32132/07, § 44, 31 July 2014). Accordingly, it dismisses the Government's objection.

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

22.  The general principles concerning the obligation of the High Contracting Parties under Article 3 of the Convention not to subject persons under their jurisdiction to inhuman or degrading treatment or torture in the course of encounters with the police have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015). The general principles with regard to the procedural obligation of the High Contracting Parties under Article 3 of the Convention to investigate acts of ill-treatment by State agents have likewise been set out in detail in Bouyid (ibid., §§ 115-23).

23.  The Court also reiterates that even in the absence of an express complaint, an investigation should be undertaken if there are other sufficiently clear indications that torture or ill-treatment might have occurred. The authorities must act of their own motion once the matter has come to their attention (see Members of the Gldani Congregation of Jehovah's Witnesses and Others v. Georgia, no. 71156/01, § 97, 3 May 2007).

24.  Turning to the circumstances of the present case, the Court considers that although the applicants' complaints made before the domestic authorities contained enough specific information - the identity of the alleged perpetrators, the date, the place and the nature of the ill-treatment - and were supported by sufficient evidence - photos, witness statements and media reports - to constitute an "arguable claim" in respect of which those authorities were under an obligation to conduct an effective investigation, no criminal inquiry has been carried out in the instant case into the applicants' allegations of ill-treatment (see Mehdiyev v. Azerbaijan, no. 59075/09, § 66, 18 June 2015).

25.  Furthermore, the Court notes that, as there was no criminal inquiry in respect of the applicants' allegations of ill-treatment, the prosecutor did not hear evidence from the applicants, the alleged perpetrators of the ill-treatment, other customs and police officers, the applicants' witnesses I.N. and E.A., or any other possible witness. Moreover, the prosecutor refused to order a medical examination of the first applicant despite the lawyer's explicit requests. No explanation was given by the Government as to the domestic authorities' failure to conduct an investigation in that respect (compare Jannatov, cited above, § 53).

26.  The foregoing considerations are sufficient to enable the Court to conclude that there was no effective investigation of the applicants' claim of ill-treatment.

27.  There has accordingly been a violation of Article 3 of the Convention under its procedural limb in respect of both applicants.

28.  However, although the Court has found that the applicants' submissions were such as to oblige the authorities to launch an official investigation (see paragraph 24 above), it considers that the evidence provided by the applicants does not enable it to find to the standard of proof "beyond reasonable doubt" that they were subjected to the alleged ill-treatment (see Jannatov, cited above, §§ 59-60).

29.  The Court would like to emphasise 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 (compare Mehdiyev, § 75, and Jannatov, § 61, both cited above).

30.  Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicants' alleged ill-treatment.

2. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

31.  In the leading cases of Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 184-95, 9 November 2010) and Isayeva v. Azerbaijan (no. 36229/11, §§ 83-93, 25 June 2015), the Court found a violation in respect of issues similar to those in the present case.

32.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case, by using a standard formula merely listing the grounds for detention without mentioning the specific facts of the applicants' case, as well as dismissing their request for the replacement of remand in custody by house arrest without duly examining the arguments for release put forward by them, the domestic courts failed to give "relevant" and "sufficient" reasons to justify the applicants' pre-trial detention (compare Zayidov v. Azerbaijan, no. 11948/08, § 62, 20 February 2014).

33.  This complaint is therefore admissible and discloses a violation of Article 5 § 3 of the Convention in respect of both applicants.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  The first applicant claimed 38,000 euros (EUR) in respect of pecuniary damage for the goods he had lost at customs after his arrest. The applicants also claimed EUR 100,000 each in respect of non-pecuniary damage and EUR 4,335 for legal services incurred before the domestic courts and the Court, as well as translation expenses.

35.  The Government contested the amounts as excessive and unsubstantiated.

36.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged. It therefore rejects this claim. However, it awards each applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

37.  Having regard to the documents in its possession, the Court also considers it reasonable to award, to both applicants jointly, EUR 2,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be paid directly to the applicants' representative.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;
3. Holds that there has been no violation of Article 3 of the Convention under its substantive limb;
4. Holds that there has been a violation of Article 5 § 3 of the Convention;
5. Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 10,000 (ten thousand euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros) to both applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses, to be paid directly into the bank account of the applicants' representative;

(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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 12 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President