Communicated on 29 August 2017

FIFTH SECTION

Application no. 49349/12 Abakar GAZIYEV and others against Azerbaijan lodged on 12 July 2012

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.

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

A. The applicants ’ treatment on account of manifesting their religious belief

1. The third and the fourth applicants

On an unspecified date in 2010, following the expiration of their identity cards, the third and the fourth applicants applied to have them renewed to the Zakatala District Passport Registration and Migration Service ( Zaqatala Rayon Pasport Qeydiyyatı və Miqrasiya Xidməti – hereinafter referred to as “the PQMX”). However, their request was denied on the grounds that they were wearing beards.

Ac cording to the applicants, on 1 September 2010 they were stopped by the police for a violation of the road traffic rules and were taken to Zakatala district police department. Later on the same date they were found guilty in “auto-hooliganism” ( avto-xuliqanlıq - violation of road traffic rules causing imminent danger to third parties and gross public disturbance) under the Code of Administrative Offences and were sentenced to eight and three days ’ administrative detention respectively. When the detention ended, seven to eight people (it is not specified whether those individuals were police officers) held their hands down and they had their beards forcibly shaved.

According to the fourth applicant, as he was preparing for the pilgrimage to Mecca at the time, he did not challenge the detention order and accepted an identity card bearing his beardless photo. However, upon completion of the pilgrimage to Mecca he applied to the PQMX once again, but his request was denied.

2. The first and the second applicants

On 26 June 2011 the first and the second applicants visited Zakatala district notary office to verify that power of attorney had been given to their lawyer but the notary refused to accept their identity cards as they had expired. The first and the second applicants went to Zakatala district police department to apply for renewal of their identity cards. There they were both degradingly treated; the first applicant was beaten. Following that treatment they were grabbed and held by seven to eight police officers and forcibly shaved. Afterwards, they were told to return the next morning to pick up their renewed identity cards and then released.

While the first and the second applicants were at the police department, they were charged with hooliganism under the Code of Administrative Offences for causing a public disturbance on the street in front of the Zakatala District Court and fined 50 manats (AZN – approximately 50 euros (EUR) at the time) each.

The first and the second applicants did not challenge the fine order.

On 5 August 2011 the first and the second applicants ’ lawyer lodged a request with the Ministry of Internal Affairs to start a criminal investigation regarding unlawful acts committed by two deputy chiefs of Zakatala district police department.

On 20 August 2011 the first and the second applicants were informed by the Ministry of Internal Affairs that an internal investigation had not revealed any evidence concerning their complaints.

B. Judicial review

1. First set of proceedings

On an unspecified date the applicants lodged an action against the Prosecutor General ’ s Office, the Ministry of Internal Affairs, the Zakatala district prosecutor ’ s office and Zakatala district police department with the Sabail District Court, asking the court to declare unlawful the refusal to initiate a criminal case regarding the applicants ’ unlawful detention and their torture (the defendants ’ inaction), and to impose on the defendants an obligation to initiate a criminal case.

On 13 December 2011 the Sabail District Court rejected the complaint as inadmissible on the grounds that the applicants had failed to submit to the court documentation in respect of a particular decision for the court ’ s consideration, contrary to the requirements of Article 449.3 of the Code of Criminal Procedure which provides a complete list of actions and decisions of the organs conducting criminal proceedings that may be appealed against under the courts ’ supervision.

On an unspecified date, the applicants lodged an appeal against that decision.

On 13 January 2012 the Baku Appeal Court dismissed the applicants ’ appeal.

2. Second set of proceedings

On an unspecified date the applicants lodged an action against Zakatala district police department and the PQMX with the Sheki Administrative ‑ Economic Court asking the court to impose on the defendants an obligation to nullify the identity cards issued to the first and the second applicants unlawfully and with the application of torture. The applicants further requested that identity cards with photographs reflecting their normal appearance, that is to say with beards, be issued to them. They also sought 20,000 Azerbaijani manats (AZN – approximately 20,000 euros (EUR) at the time) in damages.

On 29 March 2012 the Sheki Administrative-Economic Court rejected the claim. The judgment stated that the first, second and fourth applicants had already been provided with valid identity cards on various dates. The third applicant had never applied to the authorities to have one issued, and even refused to do so when he was offered such a possibility during the proceedings. The court also found that the applicants had failed to substantiate their allegations of having been forcefully shaved.

On an unspecified date the applicants lodged an appeal against the judgment of the first-instance court.

On 28 August 2012 the Sheki Court of Appeal dismissed the applicants appeal and upheld the judgment of the Sheki Administrative-Economic Court. The appellate court stated that during the proceedings before it, the court had suggested to the first and the second applicants to accept the identity cards which had been prepared and kept at PQMX, and to the third applicant to apply for a new one, but the applicants refused to do so.

On an unspecified date the applicants lodged a cassation appeal against the judgment of the Sheki Court of Appeal. They also referred to the submission of the representative of Zakatala district police department who had originally stated during the proceedings that in accordance with the relevant legislation it had not been possible to issue identity cards to persons with beards, but who had later acknowledged that it was possible to provide anyone with a beard of any length with an identity card.

On 7 March 2013 the Supreme Court partially quashed the decision of the appellate court and partially rejected the applicants ’ claim as inadmissible. The Su preme Court referred to Article 35.1 of the Code of Administrative Procedure, which provided that claims against administrative bodies are admissible if an applicant is able to prove that the acts adopted by the administrative bodies or their refusal to adopt an act, their actions or inactions violated the applicant ’ s rights. The applicants had failed to prove that their rights had been violated.

COMPLAINTS

The applicants complain under Articles 3 and 9 of the Convention that the domestic authorities ’ refusal to provide them with identity cards with photographs with beards and the forced shaving of their beards by the police amounted to a violation of their rights protected under the Convention.

QUESTIONS TO THE PARTIES

1. Have the applicants been subjected to treatment contrary to Article 3 of the Convention? In particular, were the applicants ’ beards forcefully shaved by the police? Having regard to the procedural protection from torture, inhuman or deg rading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic a uthorities in breach of Article 3 of the Convention?

2. Has there been an interference with the applicants ’ freedom of thought, conscience or religion as a result of the domestic authorities ’ refusal to provide them with identity cards with photographs with beards and of the alleged forceful shaving of the applicants, wi thin the meaning of Article 9 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?

3. The Government are invited to submit copies of all the documents relating to the domestic proceedings including transcripts of the court hearings.

Appendix