FIRST SECTION

DECISION

Application no . 46903/07 Akif MAMMADOV against Azerbaijan

The European Court of Human Rights ( First Section ), sitting on 13 May 2014 as a Chamber composed of:

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

Having regard to the above application lodged on 8 October 2007 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Akif Kazim oglu Mammadov ( Akif Kazım oğlu Məmmədov ) , is an Azerbaijani national born in 1955 and currently serving a prison sentence i n Baku .

2. He was represented before the Court by Mr I. Ashurov , a lawyer practising in Azerbaijan . The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç . Asgarov .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s arrest by agents of the Ministry of National Security (“the MNS”)

4. At the time of the events, the applicant serv ed as a police major in the Ministry of Internal Affairs. He worked for the Saatli District Police Organised Crime Department.

5. At around 10 p.m. on 22 March 2005, at a location near the Azerbaijani-Iranian border in the Imishli District, the applicant and an acquaintance (U.H.) received approximately 71.75 kg of marijuana from an Iranian national who had smuggled the drugs through the State border . The two accomplices put the packages of marijuana in the boot of the applicant ’ s car. When they attempted to drive off, a number of MNS agents, who had surveilled the operation, tried to stop the car. Shots were fired and t wo bullets reached the car ’ s interior and wounded the applicant in the left leg. Despite his bullet wounds, the applicant managed to continue driving his car and escape from the scene.

6. The applicant and U.H. drove several kilometres , then disposed of the packages of marijuana and abandoned the car. Shortly afterwards the applicant and U.H. were arrested by the MNS agents. The applicant was first brought to the Imishli District Department of the MNS, but due to his wounds thereafter transferred to the Imishli District Hospital for treatment.

7. The record of arrest compiled by the MNS agents on 23 March 2005 also described the circumstances of the operation of 22 March 2005. The relevant part of the record reads as follows:

“...Two persons who were in the car tried to escape from the scene of the crime by speeding the car towards the MNS agents. Although the MNS agents fired a warning shot into the air, the driver tried to hit them by car and at that moment shots were fired at the car ’ s tyres . Two persons in the car began to drive the car through the village in the direction of the fields situated in the Beylagan District...”

2 . Institution of criminal proceedings against the applicant and his criminal conviction

8. On 24 March 2005 criminal proceedings were instituted by the Investigation Department of the MNS in connection with above-mentioned incident, under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code.

9. At 6.10 p.m. on 24 March 2005 an investigator from the MNS issued a record of the applicant ’ s detention as a suspect ( tutma protokolu ) in the presence of him and his lawyer. He was suspected of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code. The applicant claimed his innocence and stated that he had not known that the packages had contained marijuana. He submitted that U.H. had lied to him about what they had contained, and that he had only gone to the border area at U.H. ’ s request. He further confirmed that after his arrest, he had first been taken to the Imishli District Department of the MNS, and then to the Imishli District Hospital, where he had been provided with medical assistance. He did not challenge t he lawfulness of the force used against him during the operation of 22 March 2005.

10. On 26 March 2005 the applicant was officially charged with smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances. On the same day the investigator questioned him again, now as an accused, in the presence of his lawyer. The applicant reiterated his previous statement. On the same day the applicant was brought before the Sebail District Court which ordered his pre-trial detention for a period of three months .

11. On 28 April 2005 the applicant ’ s lawyer asked the investigator to order a forensic examination to determine whether the applicant ’ s state of health was compatible with his pre-trial detention, as he suffered from ischemic heart disease and had once suffered a heart attack.

12. On 29 April 2005 the investigator dismissed the request after deciding that a forensic examination of the applicant was not necessary.

13. On 14 June 2005 the investigator lodged the indictment with the Assize Court.

14. According to the applicant, on 4 July 2005 at a hearing before the Assize Court in the course of the criminal trial, he submitted that on 22 March 2005 the MNS agents had shot at his car without first firing a warning shot, as a result of which he had been wounded in the left leg. He further claimed that the agents had not been wearing vests identifying them as officers of the law-enforcement authorities and he therefore could not identify them in the darkness. The applicant also complained that he had not been provided with adequate medical assistance during the first fifteen days of his detention in the MNS detention facility.

15. The proceedings before the Assize Court ended on 13 July 2005 with a judgment in which the court found the applicant guilty of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances and sentenced him to fifteen years ’ imprisonment. The court also ordered that his car be confiscated as it had been used in the crime. The court did not in its judgment refer to the issues related to the operation of 22 March 2005 and the alleged lack of adequate medical assistance following his arrest, as submitted b y him on 4 July 2005 (cf. paragraph 14).

16. In August 2005 the applicant appealed against his conviction, claiming his innocence. He complained about the assessment of the evidence by the Assize Court and argued that the lower court had not taken into account the mitigating circumstances of the case when sentencing him to fifteen years ’ imprisonment.

17. On 15 September 2005 the Court of Appeal upheld the applicant ’ s conviction, but reduced his sentence to thirteen years ’ imprisonment, taking into account certain mitigating circumstances.

18. In March 2007 the applicant lodged a cassation appeal. He claimed his innocence, complaining about the assessment of the evidence by the lower courts.

19. On 22 May 2007 the Supreme Court upheld the Court of Appeal ’ s judgment of 15 September 2005.

B. Relevant domestic law

20. In accordance with Article 37 of the Code of Criminal Procedure (“ 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 such actions or decisions as , inter alia , the prosecution authorities ’ refusal to institute criminal proceedings or to terminate them . 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 .

COMPLAINTS

21. Relying on Article 3 of the Convention , t he applicant complained that he had been shot by MNS agents without any warning or justification, that he had not been provided with adequate medical assistance after his arrest, and that he had been ill-treated by MNS agents and kept in inadequate conditions of detention despite his poor health .

22. The applicant complained under Article 5 of the Convention that he had been unlawfully arrested in the absence of any reasonable suspicion that he had committed a criminal offence. He also complained u nder Articles 6 and 13 of the Convention that the criminal proceedings against him had been unfair and that the domestic courts had been ineffective . Relying on Article 1 of Protocol No. 1 to the Convention, he complained of a violation of his property rights .

THE LAW

A. Complaint s raised under Article 3 of the Convention

23 . The applicant complained that he had been shot by MNS agents without any warning or justification, that he had not been provided with adequate medical assistance after his arrest, and that he had been ill-treated by MNS agents and kept in inadequate conditions of detention, despite his poor health . 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.”

When communicating the application the Court, ex officio , asked the parties also to submit observations on Article 2 of the Convention, which reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

24 . The Government submitted that the applicant had failed to exhaust domestic remedies , as he had not raised any complaint s before the competent domestic authorities concerning the lawfulness of the force used against him during the operation of 22 March 2005, the alleged lack of medical assistance after his arrest, his alleged ill-treatment or his conditions of detention. In particular, the Government noted that the applicant should have lodged a criminal complaint with the prosecution authorities or should have complained to the investigator during the criminal investigation about the above-mentioned issues. The Government also pointed out, relying on the case of Mammadov v. Azerbaijan (no. 34445/04 , 11 January 2007 ), that under the Azerbaijani law the civil and administrative avenues were available to the applicant in respect of his complaints concerning the conditions of detention and alleged in adequate medical assistance.

25. The Government further disputed that the applicant had raised these complaints during the trial on 4 July 2005, submitting that the criminal case contained nothing to suggest that a request had been lodged by the applicant that day. Lastly, the Government pointed out that even assuming that the applicant had raised the complaints in question during the trial before the first-instance court, he had failed to raise them subsequently in his appeals to the Court of Appeal and the Supreme Court.

26. In his observations lodged with the Court, t he applicant disputed the Government ’ s submissions without replying to their particular objections. He submitted in a general way that he had exhausted domestic remedies.

27. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey , 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996 ‑ IV, and Aksoy v. Turkey , 18 December 1996, § § 51-52 , Reports of Judgments and Decisions 1996-VI ) .

28 . As regards the distribution of the burden of proof, i t is incumbent on the Government claiming non ‑ exhaustion to satisfy the Court that the remedy was an effective one available both in theory and in practice at the relevant time, that is to say that it was accessible, capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others , cited above, § 68, and Muradova v. Azerbaijan , no. 22684/05, § 84, 2 April 2009).

30. Turning to the circumstances of the present case , the Court observes that the applicant never raised his complaints concerning the lawfulness of the force used against him during the operation of 22 March 2005 and his alleged ill-treatment before the domestic authorities. In particular, he did not lodge a criminal complaint with the police or the prosecution authorities in this respect. He also failed to raise these complaints during the criminal investigation. In this connection, the Court observes that the only request the applicant lodged during the investigation concerned his forensic examination in order to establish whether his state of health was compatible with pre-trial detention (see paragraph 11 above).

31. The Court further notes that the applicant also failed to institute civil or administrative proceedings in respect of his complaints concerning the alleged lack of medical assistance and his conditions of detention . Moreover, t he applicant did not state whether there were special circumstances in the present case which would dispense him from the obligation to exhaust the available domestic remedies (compare Muradova , cited above , § 131 ).

33. The Court thus finds that the applicant failed to exhaust domestic remedies without good reason , and his complaint s raised under Article 3 of the Convention as well as any issue raised, ex officio , by the Court under Article 2 of the Convention must accordingly be rejected under Article 35 §§ 1 and 4 of the Convention.

B. The remainder of the application

34 . The applicant complained under Article 5 of the Convention that he had been unlawfully arrested in the absence of any reasonable suspicion that he had committed a criminal offence. He also complained under Articles 6 and 13 of the Convention that the criminal proceedings had been unfair and that the domestic courts had been ineffective. Relying on Article 1 of Protocol No. 1 to the Convention, he complained of a violation of his property rights.

35 . The Court has examined these complaints as submitted by the applicant. However, having regard to all the material in its possession and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President