Communicated on 4 November 2014

FIRST SECTION

Application no . 81553/12 Hilal MAMMADOV against Azerbaijan lodged on 19 November 2012

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Hilal Alif oglu Mammadov , is an Azerbaijani national of Talish origin, who was born in 1959 and lives in Baku. He is represented before the Court by Mr K. Bagirov , a lawyer practising in Azerbaijan.

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

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

The applicant was a scientist (mathematician-physicist) who had worked at the Academy of Sciences of the Republic of Azerbaijan from 1981 to 1993. He was then involved in the political life of the country. He also worked as the editor-in-chief of “ Talishi Sedo ”, a bilingual Azerbaijani ‑ Talish newspaper, and was the chairman of the Talish Cultural Centre. He has been the chairman of the Committee for Rehabilitation of Detainees since 2009.

On the afternoon of 21 June 2012, when the applicant was going home, six or seven plain-clothes police officers assaulted him near the metro station Neftchilar in Baku . Without presenting themselves, they held the applicant ’ s arms and began to beat lower parts of his knees. They further kicked in the right lower part of his ribcage and then slipped narcotic substances into the right side pocket of his clothes. They handcuffed the applicant and dragged him into their car where they continued to kick and slap him in the head and the face. In the car they insulted the applicant making comments on his ethnic origin and threatened him because of a video recording that he had uploaded to the YouTube video platform.

The applicant realised that he had been arrested by the police only when he was taken to the narcotics department of the Ministry of Internal Affairs. A search of the applicant was conducted at the police station. According to the search record, the search was carried out from 1.45 p.m. to 2 p.m. on 21 June 2012 in the presence of the applicant, police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, substances similar to heroin were found.

At 2 p.m. on 21 June 2012 a police investigator drew up a record of the applicant ’ s arrest.

On the same day a search was carried out in the applicant ’ s flat without any court order. According to the search record, the search was conducted from 6.10 p.m. to 7.55 p.m. on 21 June 2012 in the presence of the applicant, police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer and the two attesting witnesses were the same persons who had previously participated in the search at the police station. During the search, narcotic substances similar to heroin were found. The applicant made a written comment in the record noting that narcotic substances did not belong to him.

On 21 and 22 June 2012 the applicant was detained handcuffed and was deprived of food and water.

B. Institution of criminal proceedings against the applicant and his pre-trial detention

On 22 June 2012 the applicant was charged under Article 234.4.3 (illegal preparation, possession, purchase, transportation and sale of narcotic substances in large quantities ) of the Criminal Code.

On the same day the Nizami District Court , relying on the official charge brought against the applicant and the prosecutor ’ s request to apply the preventive measure of remand in custody, ordered the applicant ’ s detention for a period of three months. The court justified the application of the preventive measure of remand in custody by the gravity of the charge, the fact that the applicant was charged with a criminal offence punishable by more than five years ’ imprisonment, and the likelihood that if released he might abscond from the investigation.

On 25 June 2012 the applicant appealed against this decision, claiming that there was no need to apply the preventive measure of remand in custody. He further complained that there was no reasonable suspicion that he had committed a criminal offence because the narcotic substances found on his person and in his flat did not belong to him and that they had been planted by the police.

On 3 July 2012 the applicant was charged with the new criminal offences under Articles 274 (high treason) and 283.2.2 (incitement to ethnic, racial, social or religious hatred and hostility) of the Criminal Code.

On 14 August 2012 the Baku Court of Appeal dismissed the appeal and upheld the first-instance court ’ s decision.

On 17 August 2012 the applicant lodged a request with the Nizami District Court asking the court to replace his remand in custody with the preventive measure of house arrest. He claimed, in particular, that his pre ‑ trial detention had not been justified and that there was no reason for his continued detention.

On 1 September 2012 the Nizami District Court dismissed his request as unsubstantiated.

On 4 September 2012 the applicant appealed against this decision. In support of his request for replacement of pre-trial detention by house arrest, the applicant pointed out that he had a permanent place of residence, that his state of health was fragile, and that there was no risk of his absconding from or obstructing the investigation.

On 10 December 2012 the Baku Court of Appeal dismissed the appeal. The appellate court found that if placed under house arrest the applicant might abscond from the investigation and obstruct the functioning of the investigation by influencing other participants in the criminal proceedings.

In the meantime, on 15 September 2012 the Nasimi District Court extended the applicant ’ s pre-trial detention for a period of four months. As justification for the extension of the detention period, the court relied on the gravity of the charges, the likelihood that if released he might abscond from and obstruct the investigation, as well as the complexity of the criminal case and the necessity to carry out further investigative actions.

On 17 September 2012 the applicant appealed against this decision claiming that the court had failed to substantiate the extension of his detention and that there was no reason to hold him in detention.

On 20 September 2012 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 15 September 2012.

C. Proceedings concerning the applicant ’ s alleged ill-treatment

On 21 June 2012 the investigator in charge of the case ordered the applicant ’ s forensic examination.

By a forensic report of 23 June 2012 no. 554, the expert concluded that there were bruises on the lower part of the applicant ’ s left thigh and on his right thigh. The expert also concluded that the bruises were caused by a hard blunt object and its time of infliction corresponds to 21 June 2012. According to the applicant, he was not provided with a copy of the forensic report.

On 30 June 2012 the investigator questio ned the applicant about his ill ‑ treatment by the police.

On 6 July 2012 the applicant lodged a complaint with the Nasimi District Court complaining about the prosecuting authorities ’ failure to investigate his complaint of ill-treatment. The applicant asked the court to find a violation of his right protected under Article 3 of the Convention. In support of his complaint, he submitted that on 21 June 2012, without presenting themselves, six or seven plain-clothes police officers had assaulted him near the metro station Neftchilar in Baku . In particular, they had held his arms and had begun to beat lower parts of his knees. They had further kicked in the right lower part of his ribcage and had then slipped narcotic substances into the right side pocket of his clothes. They had continued to kick and slap him in the head and the face and had insulted him making comments on his ethnic origin. They had threatened him because of a video recording that he had uploaded to the YouTube video platform. The applicant further stated that on 21 and 22 June 2012 he had been detained handcuffed and had been deprived of food and water.

On 29 August 2012 the Nasimi District Court dismissed the applicant ’ s complaint as unsubstantiated. In the course of the court proceedings, the applicant learned about the Deputy Prosecutor General ’ s decision of 27 August 2012 on refusal to institute criminal proceedings in respect of his ill-treatment. He also learned that a further forensic examination, dated 24 August 2012 no. 213, concluded that the bruises on his person resulted from the fact that the applicant had hit the sharp parts of the vehicle. The applicant was not provided with a copy of the forensic report in question.

The applicant appealed against this decision claiming that he had been ill-treated by the police during his arrest and at the police station. He also noted that he had not been provided with any decision taken by the prosecuting authorities in the proceedings relating to his ill-treatment.

On 14 September 2012 the Baku Court of Appeal dismissed the applicant ’ s appeal.

On an unspecified date in October 2012 the applicant lodged a complaint against the prosecutor ’ s decision of 27 August 2012 on refusal to institute criminal proceedings. He asked the court to quash this decision and declare it unlawful. He also asked the court to hear the experts who had conducted the forensic examinations, as well as the police officers involved in his arrest.

On 8 November 2012 the Sabail District Court dismissed the applicant ’ s complaint, finding the prosecutor ’ s decision justified. The court, however, made no mention of the applicant ’ s particular requests to hear the experts and the police officers.

On 19 November 2012 the Baku C ourt of Appeal upheld the first ‑ instance court ’ s decision.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated by the police during his arrest and that at the police station he was detained handcuffed and was deprived of food and water. He further complains that the domestic authorities failed to investigate his allegation of ill-treatment.

The applicant complains under Article 5 of the Convention that his arrest and detention were unlawful because there was no reasonable suspicion that he had committed a criminal offence.

The applicant further complains under Article 5 of the Convention that the domestic courts failed to justify the application of the preventive measure of remand in custody in his respect and that there was no relevant and sufficient reasons for the extension of the detention period.

Q UESTION S TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention? 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. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant ’ s detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion?

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

4. The parties are requested to submit copies of all documents (forensic reports, medical records, records of questioning, photos, video recordings, witness statements, etc .) relating to the proceedings concerning the applicant ’ s alleged ill-treatment and pre-trial detention.