FIFTH SECTION

CASE OF MUSTAFA HAJILI v. AZERBAIJAN

( Application no. 42119/12 )

JUDGMENT

STRASBOURG

24 November 2016

FINAL

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mustafa Hajili v. Azerbaijan ,

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

Angelika Nußberger, President, Erik Møse, Khanlar Hajiyev, André Potocki, Faris Vehabović, Síofra O ’ Leary, Mārtiņš Mits, judges, and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 3 November 2016 ,

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

PROCEDURE

1 . The case originated in an application (no. 42119/12) 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 Mustafa Mustafa oglu Hajili ( Mustafa Mustafa oğlu Hacılı - “the applicant”), on 20 June 2012 .

2 . The applicant was represented by Mr N. Karimli, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3 . The applicant alleged that he had been ill-treated while in police custody and that the domestic authorities had failed to investigate his complaint in this respect.

4 . On 4 April 2014 the complaints concerning Articles 3 and 13 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1972 and lives in Baku .

6 . He was a journalist and at the relevan t time was working as editor ‑ in ‑ chief of the Demokrat newspaper. He was also a member of the Musavat Party.

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

1. The applicant ’ s version of events

7 . On 2 April 2011 a number of opposition parties held a demonstration at Fountains Square in Baku. The applicant went to the place where the demonstration would be held , intending to participate in it.

8 . On arriving at Fountains Square a t around 2.15 p.m. on 2 April 2011, the applicant was arrested by a group of police officers and taken to the Nasimi District Police Office (“the NDPO”) .

9 . After his arrival at the police office, the applicant was placed in the exercise yard of the NDPO temporary detention centre with other arrested persons. A f ew minutes later the deputy h ead of the N DPO , S . N., arrived at the detention centre with two men , one of wh om was wearing a police uniform while the other was in plain clothes . The applicant introduced himself as a journalist and asked S.N. the reasons for his arrest. T he two men accompanying S.N. then held the applicant ’ s arms while S.N. punch ed and kick ed him in different parts of his body. After having physically assaulted the applicant, S.N. and the other two men left the detention centre .

10 . At around 11 p.m. on 2 April 2011 the applicant was given a formal warning , under Article 298 of the Code of Administrative Offences , for participating in an unauthorised demonstration and was released from detention.

2. The Government ’ s version of events

11 . The Government maintained that the applicant had not been subjected to torture or inhuman or degrading treatment in police custody.

12 . The Government also submitted an administrative offence record drawn up at 4.30 p.m. on 2 April 2011 , according to which the applicant had been warned , under Article 298 of the Code of Administrative Offences , for violation of the rule regulating the organisation and holding of gatherings. The applicant had signed the record and made a comment confirming his participation in the demonstration.

B. Remedies used by the applicant

13 . On 4 April 2011 the applicant lodged a criminal complaint with the Nasimi district prosecutor ’ s o ffice, claiming that on 2 April 2011 he had been ill-treated by S.N. in police custody.

14 . On 6 April 2011 the investigator in charge of the case questioned the applicant , who reiterated his allegation of ill-treatment. In particular, he s tated that on 2 April 2011 , while he had been detained in the exercise yard of the temporary detention centre of the NDPO with other arrested persons, he had been beaten by S.N. and two other men , one of whom had been wearing a police uniform while the other had been in plain clothes . W hen he had asked S.N. the reasons for his arrest, the two men accompanying S.N. had held his arms and S.N. had physically assaulted him by punching and kicking him in different parts of his body .

15 . On 6 April 2011 the applicant was examined by a forensic expert. It appears from forensic report no. 01/MES dated 9 April 2011 that t he expert noticed a bruise ( qançır ) measuring 4.5 by 2.5 cm on the outer side of the applicant ’ s right calf ( baldır ) . He concluded that the injur y had been caused by a hard blunt object and that the time at which it had been inflicted corresponded to 2 April 2011.

16 . On 12 and 14 April 2011 the investigator questioned T.Y. and N.S . as witness es in connection with the applicant ’ s ill-treatment complaint. The two witnesses, who had also been arrested on 2 April 2011 and detained in the temporary detention centre of the NDPO, confirmed that on 2 April 2011 the applicant had been beaten by S.N. in the exercise yard of the NDPO temporary detention centre . In this connection, T.Y. stated that , when S.N. and two other men had arrived at the temporary detention centre , S.N. had begu n insult ing the applicant . S.N. had also kicked him in the stomach. A s the applicant had objected to it , S.N. and the two men accompanying him began to beat the applicant . N.S. also stated that S.N. and the two men accompanying him had begu n insulting the arrested persons immediately after their arrival at the temporary detention centre . A s the applicant had objected to their attitude, they had beat en him severely .

17 . On 15 April 2011 the investigator questioned S.N. , who refuted the applicant ’ s allegations. S.N. claimed that he had not used force against the applicant and that, in any event, he had not been on the premises of the NDPO between 1 and 7 p.m. on 2 April 2011 when the applicant had been taken there.

18 . On 18 April 2011 the investigator separately questioned two police officers , M.V. and R.M., who had been on guard duty at the NDPO on 2 April 2011. The wording of their statements was identical. They each stated that none of the persons arrested on 2 April 2011 had been placed in the exercise yard of the temporary detention centre and that none of them had been beaten. T hey also stated that S.N. had not been present when the arrested persons had been taken to the police office.

19 . On 20 and 22 April 2011 the investigator separately questioned two police officers , I.M., who had participated in the applicant ’ s arrest on 2 April 2011 , and I.S., who was the neighbourhood police officer for the area where the applicant was arrested . Their statements were identical. They each claimed that the applicant had not been placed in the exercise area of the temporary detention centre and had not been beaten in police custody. They also claimed that S.N. had not been present at that time at the police office. Moreover, I.M. stated that when he had taken the applicant to the police office he had not been aware of any injury on the applicant ’ s body . However, such an injury might have been inflicted during the unlawful demonstration.

20 . On 25 April 2011 the d eputy p rosecutor of the Nasimi district prosecutor ’ s o ffice issued a decision refusing to institute criminal proceedings in connection with the applicant ’ s complaint of ill-treatment . In his decision, after having summarised the conclusions of the forensic report and the statements given by the applicant, T.Y. and N.S., as well as S.N. and the other four police officers questioned during the inquiry , the prosecutor concluded in one sentence that the available evidence did not disclose any appearance of a criminal act. The relevant part of the decision reads as follows:

“As no appearance of a criminal act was disclosed in the material collected during the inquiry at the request of Hajili Mustafa Mustafa oglu , who claimed that on 2 April 2011 he had sustained injury as a result of a beating by the d eputy h ead of the NDPO, S.N., the institution of criminal proceedings should be refused.”

21 . On 5 January 2012 t he applicant lodged a complaint against that decision with the Nasimi District Court, arguing that the prosecutor ’ s decision was unsubstantiated. In particular, he claimed that the prosecutor had not taken into consideration the conclusions of the forensic report and the statements from T.Y. and N.S. The applicant also complained that the prosecutor had failed to give any explanation as to the circumstances in which t he injury had been caused .

22 . It appears from the transcript of the court hearing of 16 January 2012 that in the proceedings before the Nasimi District Court the applicant ’ s lawyer asked the court to hear T.Y. and N.S. , who had testified during the inquiry in support of the applicant ’ s c omplaint o f ill-treatment . He also asked the court to order the examination of video recordings from the NDPO ’ s security cameras. In reply to the lawyer ’ s requests, the investigator in charge of the case stated at the hearing that the NDPO ’ s security cameras were only for surveillance purposes and did not record. The court granted the lawyer ’ s request concerning the examination of the video recordings from the security cameras.

23 . On 24 January 2012 the Nasimi District Court dismissed the complaint, finding that the prosecutor ’ s decision of 25 April 2011 had been lawful and properly substantiated. The court held that, although the expert had noticed a bruise on the applicant ’ s body, it had not been established that the injury had been inflicted by S.N. As regards the video recordings, the court noted that they were no longer available . T he NDPO had replied to its request relating to the examinat ion of the video recordings that the security cameras in question had not contained a memory card and , therefore , the video recordings had been automatically deleted one month later. The judgment made no mention of the witness statements made in favour of the applicant ’ s ill-treatment claim.

24 . On 27 January 2012 the applicant appealed against the decision, reiterating his previous complaints. In particular, he complained that the prosecutor had failed to give any explanation of how the injury noticed by the forensic expert had been caused. He also requested the appellate court to hear T.Y. and N.S. , claiming that the first-instance court had ignored their witness statements without any reason. The applicant further complained about the conflicting expla nations given by the investigat or and the Nasimi District Court as to the impossibility of obtain ing video recordings from the NDPO ’ s security cameras. W hereas the investigator had explained that th o se cameras were simply for surveillance purposes and did not record, the first-instance court had indicated in its decision that the impossibi lity was due to the absence of memory card s in the security cameras, which led to automatic deletion of the video recordings one month later.

25 . On 6 February 2012 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court ’ s decision of 24 January 2012. The appellate court ’ s decision made no mention of the applicant ’ s particular complaints.

II. RELEVANT DOMESTIC LAW

A. The Constitution of the Republic of Azerbaijan

“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

27 . In accordance with the Criminal Code, as in force at the material time, t he 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).

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

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

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

A. Admissibility

30 . 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

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

(a) The parties ’ submissions

31 . The Government maintained that the applicant had not been subjected to inhuman or degrading treatment in police custody . T hey argued that the two witness es who had made statements in support of his allegation of ill-treatment had given conflicting description of the events. T.Y. and N.S. had been arrested with the applicant in connection with their participation in an unauthorised demonstration , so their witness statements had been biased.

32 . As regards the conclusions of the forensic report, the Government submitted that the injury noticed by the forensic expert was not serious and might have been sustained during the dispersal of the demonstration , as submitted by the police officer, I.M. The G overnment further pointed out that the applicant had failed to make any comment about his alleged ill-treatment in the administrative offence record drawn up on 2 April 2011.

33 . The applicant contested the Government ’ s submissions. He maintained that he had been beaten up by S.N. in the exercise yard of the NDPO temporary detention centre on 2 April 2011 and that his ill-treatment had been supported by the relevant medical evidence and the witness statements . He rejected the Government ’ s argument that the statements of T.Y. and N.S were biased, submitting that the Government had failed to explain why T.Y. and N.S. should be considered more biased than the police officers questioned during the in quiry , who were hierarchically dependent on S.N.

(b) The Court ’ s assessment

(i) General principles

35 . Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom , 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece , no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia , it was premeditated, applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła , cited above, § 92).

(ii) Application of these principles to the present case

38 . The Court observes at the outset that the parties are in dispute about the question of whether the applicant was subjected to the use of force by the police at all (see Rizvanov v. Azerbaijan , no. 31805/06 , §§ 46-48, 17 April 2012, and Hilal Mammadov v. Azerbaijan , no. 81553/12 , §§ 78-84, 4 February 2016 ). In particular, the Government rejected the appli cant ’ s allegation of ill-treatment in police custody , whereas the applicant maintained his complaint that he had been beaten up by the police in the exercise yard of the temporary detention centre of the NDPO on 2 April 2011 .

39 . In view of all the materials in its possession, the Court considers that the applicant has been able to produce sufficiently strong evidence supporting the fact that he was subjected to the use of force in police custody on 2 April 2011 . In this connection, the Court notes that the existence of a bruise on the applicant ’ s right calf was established by the forensic report dated 9 April 2011 and that the Government did not dispute that fact in the domestic proceedings or before the Court. The forensic report , established following a medical examination of the applic ant on 6 April 2011, con cluded that the injury had been inflicted by a hard blunt object at a time correspond ing to 2 April 2011 (see paragraph 15 above) . I t is undisputed that , on that date, the police arrested the applicant and took him to the NDPO where he was detained for approximately eight hours. At no stage has the Government claimed that the injury was or could have been sustained after the applicant ’ s release from detention.

40 . The Court further observes that, although the Government rejected the applicant ’ s ill-treatment allegation, they did not put forward any satisfactory and convincing explanation by producing any evidence likely to cast doubt on the applicant ’ s account of events. In this connection, the Government contented themselves with submitting that the injury might have been sustained during the dispersal of the demonstration. However, t he Government did not submit any evidence in support of this argument nor is there any information indicating that there was any injury on the applicant ’ s body before hi s arrest by the police. Moreover, the police officer , I.M., to whom the Government referred in this connection, stated that he had not been aware of any injury on the applicant ’ s body when he had taken the applicant to the police office (see paragraph 19 above) .

41 . The Court also cannot overlook the fact that neither the investigating authorities, nor the domestic courts in their decisions gave any explanation of how that injury was caused. In these circumstances, the Court considers that the respondent Government have failed to discharge their burden of proof and to submit a plausible explanation refuting the applicant ’ s account of events and the medical evidence submitted . The statements provided by the different police officers questioned by the investigator were all drafted in an identical manner, despite the officers having been questioned separately, and no face-t o-face confrontation was organis ed between the applicant and those officers (see paragraph s 18 and 19 above and paragraph 52 below). Therefore, the Court has no reason to doubt the applicant ’ s account of events and finds that the injury found on his body was sustained in police custody as a result of the use of force by the police on 2 April 2011.

42 . The Court further considers that it has not been shown that the recourse to physical force against the applicant was made strictly necessary by his own conduct. It is undisputed that the applicant did not use violence against the police or pose a threat to them. It has not been shown that there were any other reasons justifying the use of force against him (see Najafli v. Azerbaijan , no. 2594/07 , § 39, 2 October 2012, and Hilal Mammadov , cited above, § 85) .

43 . As to the seriousness of the act of ill-treatment, the Court considers that although the injur y sustained by the applicant did not require any important medical intervention, it must have caused him physical pain and suffering. Moreover, t he ill-treatment inflicted by the police officers on the applicant who was entirely under their control must also have caused him considerable mental suffering, diminishing his human dignity. In these circumstances, the Court considers that the ill-treatment complained of was sufficiently serious to attain the minimum level of severity to fall within the scope of Article 3 and to be considered as inhuman and degrading treatment.

2. Alleged failure to carry out an effective investigation

(a) The parties ’ submissions

45 . The applicant m aintained that the domestic authorities had failed to conduct an effective investigation into his ill-treatment.

46 . T he Government submitted that the domestic authorities had conducted an effective investigation into the applicant ’ s allegation of ill ‑ treatment. The investigating authorities had ordered his forensic examination and questioned all the relevant witnesses, as well as the applicant and S.N. Following a thorough and comprehensive inquiry, they had decided not to institute criminal proceedings. The Government further submitted that the domestic courts had also duly examined the applicant ’ s allegation of ill-treatment. The domestic courts had been unable to examine the video recordings from the NDPO ’ s security cameras because the recordings in question had been automatically deleted one month later due to the absence of memory cards in the security cameras.

(b) The Court ’ s assessment

48 . An investigation into allegations of ill-treatment must be thorough, meaning 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 to form th e basis of their decisions (see Assenov and Others , cited above, § § 103 et seq.). They must take all steps reasonably available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will ris k falling foul of this standard (see Batı and Others v. Turkey , nos. 33097/96 and 5783 4/00, §§ 134 and 137, ECHR 2004- IV).

49 . Turning to the circumstances of the present case, the Court observes that , although the applicant raised an arguable claim, supported by the medical evidence and the witness testimonies , that he had been beaten up by the police in police custody on 2 April 2011 , following a criminal inquiry the d eputy prosecutor of the Nasimi d istrict p rosecutor ’ s o ffice refused to institute criminal proceedings in connection with the applicant ’ s allegation of ill-treatment and that de c ision was upheld by the domestic courts. It remains to be assessed whether the criminal inquiry was effective, as required by Article 3.

50 . In this connection, the Court observes numerous shortcomings in the criminal inquiry carried out by the domestic authorities.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

54 . 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

55 . The applicant claimed 450 euros (EUR) in respect of pecuniary damage for expenses for his medical treatment.

56 . The Government contested the claim, noting that the applicant had failed to substantiate his claim .

57 . The Court points out that under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, even assuming that there is a causal link between the damage claimed and the violations found, the Court observes that the applicant did not submit any documentary evidence supporting this claim. In particular, he has not submitted any receipts, prescriptions or other documents certifying his expenses for medical treatment.

58 . For the above reasons, the Cour t rejects the applicant ’ s claim in respect of pecuniary damage.

2. Non-pecuniary damage

59 . The applicant claimed EUR 28,5 00 in respect of non ‑ pecuniary damage.

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

61 . The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 1 0 ,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

62 . The applicant claimed EUR 3,000 for costs and expenses incurred before the domestic courts and the Court. In support of his claim he submitted a contract concluded with his lawyer on 12 April 2011.

63 . The Government considered that the claim was excessive.

64 . 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. In the present case, regard being had to the documents in its possession and the above criteria , the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads .

C. Default interest

65 . 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 application admissible;

2 . Holds that there has been a violation of Article 3 of the Convention as regards the applicant ’ s ill-treatment by the police ;

3 . Holds that there has been a violation of Article 3 of the Convention as regards the lack of an effective investigation of the applicant ’ s allegation of ill-treatment ;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months of 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 (t en thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 24 November 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger Deputy Registrar President