Communicated on 4 November 2014

FIRST SECTION

Application no. 20605/13 Mammad GURBANOV and Nadir MAMMADOV against Azerbaijan lodged on 26 February 2013

STATEMENT OF FACTS

The applicants, Mr Mammad Gurbanov (the first applicant) and Mr Nadir Mammadov (the second applicant) , are Azerbaijani nationals, who were born in 1953 and 1980 respectively and live in Nakhchivan . They are represented before the Court by Mr K. Bagirov , a lawyer practising in Azerbaijan .

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

A. The applicants ’ arrest and alleged ill-treatment

The applicants had a small business in Nakhchivan .

On 7 December 2012 the applicants arrived with their car loaded with goods at the Sadarak customs point situated between Azerbaijan and Turkey.

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

On 8 December 2012 they went to the customs point accompanied by a human rights defender (I.N.) and a journalist (E.A.). On their arrival at the customs point, approximately twenty customs officers physically assaulted the applicants and began to beat them. The customs officers then let E.A. and I.N. leave the area, but arrested the applicants. The second applicant was later authorised to leave the area, but on the same day at night he was arrested by the police and taken to the Sadarak District Police Office.

From 8 to 11 December 2012 the applicants were tortured in the Sadarak District Police Office. In particular, the police officers removed their clothes and kept them naked outside. Their hands were handcuffed in the back side of their head and they were forced to keep their legs wide open. The police officers also wet their feet with cold water. The second applicant lost consciousness three times because of torture and the police officers called emergency services several times. He was also forced to give statements against I.N. and E.A. The first applicant was deprived of food during three days. According to the applicants, they were tortured at the request of Q.R. who was a head of department at the Ministry of Internal Affairs of the Nakhchivan Autonomous Republic (“the NAR”).

B. Institution of criminal proceedings against the applicants and their pre-trial detention

On 10 December 2012 the Sadarak District Prosecutor ’ s Office instituted criminal proceedings against the applicants for use of violence against State officials.

At 4. p.m . on 10 December 2012 the prosecutor issued a decision on the second applicant ’ s arrest.

At 5.10 p.m. on 10 December 2012 the prosecutor issued a decision on the first applicant ’ s arrest.

On 11 December 2012 the first and second applicants were charged with the criminal offence of use of violence against State officials as provided in Articles 315.1 and 315.2 of the Criminal Code.

On 11 December 2012 the Sadarak District Court ordered the first applicant ’ s remand in custody for a period of t wo months , calculating the period of detention from 10 December 2012. The court justified the application of the preventive measure of remand in custody by the gravity of the charge, the fact that the first applicant was charged with a less serious offence punishable by more than two years ’ imprisonment, and the likelihood that if released he might abscond from and obstruct the investigation. On the same day the Sadarak District Court also ordered the second applicant ’ s remand in custody for a period of t wo months , calculating the period of detention from 10 December 2012.

On 17 December 2012 the Supreme Court of the NAR upheld the fi rst ‑ instance court ’ s decisions.

C . Remedies used by the applicants

On 24 December 2012 the applicants ’ lawyer met with them. According to the lawyer, the signs of ill-treatment on the second applicant ’ s body were visible and, in particular, there was a hematoma of 10 centimeters in the interior side of his leg. The lawyer immediately informed the prosecutor of the ill-treatment and asked for an effective investigation.

However, no action was taken by the prosecuting authorities in this respect.

On 15 January 2013 the lawyer lodged a complaint with the Sadarak District Court complaining of the applicants ’ ill-treatment. In support of the claim, 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 the photos, as well as the statements of the applicants, I.N. and E.A., reported in the media.

On 18 January 2013 the Sadarak District Court dismissed the claim, finding that it should not be examined by the court.

On 28 January 2013 the Supreme Court of the NAR dismissed the applicants ’ appeal as unsubstantiated.

In the meantime, on 15 January 2013 the applicants lodged a request with the Sadarak District Court asking the court to replace their remand in custody with the preventive measure of house arrest. In support of their request, they pointed out that they had a permanent place of residence, that there was no risk of their absconding, and that there was no risk of obstructing the investigation.

On 18 January 2013 the Sadarak District Court dismissed their request, finding that there was no need to replace the preventive measure of remand in custody in respect of the applicants.

On 28 January 2013 the Supreme Court of the NAR upheld the first ‑ instance court ’ s decisions.

COMPLAINT S

The applicant s complain under Article 3 of the Convention that they were tortured in police custody and that the domestic authorities failed to investigate their allegations of torture.

The applicant s complain under Article 5 of the Convention that the domestic courts failed to justify the application of the preventive measure of remand in custody in their respect and rejected, without giving any reason, their request for replacement of remand in custody by house arrest.

Q UESTION S TO THE PARTIES

1. Have the applicant s been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention (see Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999 ‑ V ) ? Having regard to the procedural protection from torture or inhuman or degrading 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 authorities in breach of Article 3 of the Convention?

2. Did the domestic courts give sufficient and relevant reasons for the applicants ’ detention for the purposes of Article 5 § 3 of the Convention? Did they consider alternative measures to the applicants ’ continued detention?

3. The parties are requested to submit copies of all documents ( forensic reports, medical records, photos, video recordings, witness statements, the prosecuting authorities ’ decisions, the domestic courts ’ decisions and judgments, as well as the applicant ’ s complaints against them, etc.) relating to the proceedings concerning the applicants ’ alleged ill-tr eatment and pre ‑ trial detention.