FIRST SECTION

Application no. 59075/09 Hakimeldostu MEHDIYEV against Azerbaijan lodged on 4 November 2009

STATEMENT OF FACTS

The applicant, Mr Hakimeldostu Mehdiyev , is an Azerbaijani national, who was born in 1961 and lives in Nakhchivan . He is represented before the C ourt by Ms S. Bishop and Mr R. Hajili , lawyers practising in London and Azerbaijan .

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

A. The applicant ’ s arrest and ill-treatment by officers of the Ministry of National Security

The applicant was an independent journalist and worked as a reporter of the Yeni Musavat newspaper in the Nakhchivan Autonomous Republic (“ the NAR”).

The applicant was the author of two critical articles about the economic and political situation in the NAR published in the Yeni Musavat newspaper in August and September 2007. The articles, entitled “Food became Considerably More Expensive in Nakhchivan (Owing to Vasif Talibov ’ s “Care”)” (“ Naxçıvanda ərzaq xeyli bahalaşıb ( Vasif Talıbovun “ qayğısı” sayəsində )” ) and “ Vasif Talibov Rebuilds His Native Village” (“ Vasif Talıbov doğulduğu kəndi söküb yenidən tikdirir ” ), were in particular about the activities of the speaker of the Parliament of the NAR, Vasif Talibov .

On 17 September 2007 the applicant also met a reporter of Radio Liberty and helped him to prepare a report about the economic and political situation in Nakhchivan .

At around 2 p.m. on 22 September 2007, when the applicant was in a café in the village Jalilkand of the Sharur District, the head (M.M.) of the district department of the Ministry of National Security (“the MNS”) approached him. M.M. accused the applicant of having published defamatory articles about the NAR and ordered four men in uniform to arrest him.

The applicant was taken to the premises of the MNS in Sharur by car. His mobile phone was taken away during the transportation. After their arrival at the premises of the MNS, M.M. asked him to stop spreading misinformation about the NAR. He further ordered the agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room.

Five men then began to torture the applicant. In particular, they hit him repeatedly with truncheons, kicked him and punched in his head. Approximately an hour later, M.M. returned and asked the applicant whether he had “grown wise”. M.M. further ordered five men to make the applicant “understand his mistakes”. The applicant was then subjected to further ill-treatment.

The applicant was subsequently taken to the office of M.M. who demanded him to become a member of the ruling political party (YAP ‑ Yeni AzÉ™rbaycan Partiyası ) and to write defamatory articles about opposition leaders. The applicant refused to do so.

The applicant was released at 2 a.m. on 23 September 2007 and his mobile phone was returned to him. Before his release, M.M. told him that, if he did not “grow wise”, he would be brought back to the MNS.

Following his release, the applicant immediately informed the press of his arrest. However, he was unable to see a doctor immediately, because it was night time.

B. The applicant ’ s administrative detention

On 23 September 2007 in the morning, while the applicant was about to go to see a doctor, he was arrested by the police and taken to the Sharur District Police Station.

The head of the Sharur District Police Station, M.H. shouted at the applicant asking him why he had informed the press of his arrest.

On the same day the applicant was taken to the Sharur District Court which sentenced the applicant to fifteen days ’ “administrative detention” for disobeying police orders. The applicant was not represented by a lawyer at the hearing. Two police officers testified against the applicant. The applicant was not provided with a copy of the court decision.

At the request of the applicant after the court hearing, he was taken to the Sharur Central Hospital, where he was examined by a doctor who observed numerous bruises on his body.

At around 7 p.m. on 23 September 2007 the applicant was taken to Detention Facility No. 8 to serve his sentence. During his detention, the applicant was deprived of food and water. He was not provided with any bedding and was forced to spend nights outside on a concrete walkway. The applicants ’ hands were handcuffed at all times and due to the detention facility ’ s proximity to Aras river , he suffered from numerous mosquito bites.

At midnight on 25 September 2007, the Minister of National Security of the NAR arrived with two men at the detention facility. They appeared to be drunk. The Minister insulted the applicant and then all of them beat him.

Following a campaign for the applicant ’ s release from Azerbaijani and international human rights organisations including the Committee to Protect Journalists, Reporters Without Borders and Amnesty International , on 27 September 2007 the applicant was released.

C. Remedies used by the applicant

On 29 September 2007 the applicant lodged a request for a forensic examination with the Ministry of Internal Affairs. He did not receive any reply to his request.

The applicant followed a medical treatment in the Nakhchivan Republic Hospital, however all the medical institutions refused to give him an official medical certificate.

On 3 October 2007 the applicant lodged a complaint with the Sharur District Prosecutor ’ s Office complaining about his unlawful arrest, ill ‑ treatment and detention by the MNS and asking for the institution of a criminal investigation. On 7 November 2007 the applicant re-submitted the same complaint. He did not receive any reply to his complaints.

On 22 October 2007 the applicant lodged the same complaint with the Prosecutor General ’ s Office, the Ministry of Internal Affairs and the Ombudsman. No action was taken in respect of his complaints.

On 9 February 2008 the applicant lodged an action with the Sharur District Court reiterating his previous complaints. He did not receive any reply from the court.

On 17 March 2008 the applicant applied to the Supreme Court of the NAR complaining about the Sharur District Court ’ s failure to examine his complaints. On 19 March 2008 the applicant sent the same complaint to the Supreme Court of Azerbaijan, but received no response.

On 28 July 2008 the applicant applied to the Judicial Legal Council noting that the Sharur District Court failed to examine his complaints. The Judicial Legal Council informed the applicant that his complaint had been forwarded to the Sharur District Court on 5 August 2008 and all necessary measures would be taken. However, the applicant did not receive any reply from the Sharur District Court.

On 8 January 2009 the applicant applied again to the Judicial Legal Council . The latter notified the applicant that his complaint had been forwarded to the Sharur District Court on 14 January 2009.

On 18 June 2009 the applicant sent another letter to the Sharur District Court reiterating his previous complaints. The applicant did not receive any response.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was ill-treated by agents of the MNS and that the domestic authorities failed to investigate his allegations of ill-treatment. He also complains about his conditions of detention in Detention Facility No. 8.

2. The applicant complains under Article 5 of the Convention that his detention by agents of the MNS was unlawful, that he was not informed of the reasons for his detention, and that he did not have an effective and enforceable right to compensation for his unlawful detention .

3. Relying on Article 6 of the Convention, the applicant complains that his right to a fair trial in the administrative proceedings was violated, because he was not provided with a lawyer or offered the opportunity to obtain witnesses on his behalf, and because the domestic courts refused to examine his complaints.

4. The applicant finally complains under Article 10 of the Convention about the violation of his freedom of expression, since he was ill-treated and detained because of his critical articles.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to torture or inhuman or degrading treatment, in breach of Article 3 of the Convention , by the agents of the Ministry of National Security on 22 September 2007 ? 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), has there been an investigation by the domestic authorities into the applicant ’ s allegations of ill-treatment and, if so, was the investigation in the present case in breach of Article 3 of the Convention?

The parties are requested to submit copies of the following documents:

(a) all of the applicant ’ s complaints and appeals concerning the alleged incident of 22 September 2007, lodged with the relevant domestic authorities;

(b) all the decisions of the domestic investigating or judicial authorities and any other documents related to the domestic investigation (if any) into the applicant ’ s allegations of ill-treatment; and

(c) any available forensic evidence, medical report or any other evidence attesting the applicant ’ s alleged injuries.

2 . Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the alleged deprivation of liberty during the period between 2 p.m. on 22 September 2007 and 2 a.m. on 23 September 2007 fall within paragraphs of this provision? Was the applicant informed promptly of the reasons for his arrest, as required by Article 5 § 2 of the Convention? Did the applicant have an effective and enforceab le right to compensation for a detention in contravention of Article 5 § 1, 2, 3, 4, as required by Article 5 § 5 of the Convention?

3. Has there been an interference with the ap plicant ’ s freedom of expression , in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention? In particular, were the applicant ’ s arrest by the Ministry of National Security and his subsequent administrative detention linked to his journalistic activity? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

4. Were the conditions of the applicant ’ s detention in Detention Facility No. 8 compatible with Article 3 of the Convention? Were the applicants ’ hands handcuffed at all times during his detention? Was the applicant detained in a cell in Detention Facility No. 8 between 23 September and 27 September 2007? If yes, as regards the applicant ’ s detention, in respect of the cell where the applicant was detained:

(a) What were the dimensions of the cell? How many persons were detained in that cell at the same time as the applicant? Did the applicant have a separate bed and bedding?

(b) Was the cell adequately lit and ventilated? What were the sanitary conditions inside the cell?

(c) How often could the applicant take a shower?

(d) Did the applicant have appropriate provisions of food, bedding, clothing and other necessities?

5. Was Article 6 § 1 of the Convention under its criminal head applicable to the administrative proceedings in the present case? Did the applicant have a fair h earing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant represented by a lawyer in the domestic proceedings? Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention? Was the applicant provided with a copy of the court decision?

The parties are requested to submit copies of all the documents relating to the administrative proceedings, including the report on the applicant ’ s administrative arrest, the transcripts of the hearing, the court decision and the applicant ’ s appeals and the courts ’ decisions on these appeals (if any).