FIRST SECTION

Application no. 39254/10 Ramil PI RQURBAN against Azerbaijan lodged on 30 June 2010

STATEMENT OF FACTS

The applicant, Mr Ramil Pirgurban, is an Azerbaijani national, who was born in 1978 and lives in Sumgayit. He is represented before the Court by Mr A. Mustafayev, 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 pre-trial detention

On 6 March 2010 the applicant was arrested by the police on suspicion of possession of narcotic substances. The applicant was taken to the Sumgayit City Police Station where he was subjected to a body search. During the search narcotic substances were found in the applicant ’ s pocket.

On 9 March 2010 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 10 March 2010 the Sumgayit City Court, relying on the official charges brought against the applicant and the prosecutor ’ s request to apply the preventive measure of remand in custody ( həbs qətimkan tədbiri ), ordered the applicant ’ s detention for a period of two months, calculating the period of detention from 9 March 2010 . However, the court acknowledged the violation of the applicant ’ s right to liberty noting that he had not been brought before a judge within forty-eight hours after his arrest as required by the relevant law. In this connection, on the same day the court delivered a special ruling ( xüsusi qərardad ) informing the Sumgayit Police Station of the unlawful action of the investigator.

On 7 May 2010 the Sumgayit City Court extended the applicant ’ s detention for a period of one month. As justification for the extension of the detention period, the court relied on the gravity of the charges and on the fact that the applicant should be subjected to further forensic narcotic and psychiatry examination. The applicant appealed against this decision noting that the court had failed to substantiate the extension of his detention and that there was no reason to hold him in detention.

On 14 May 2010 the Sumgayit Court of Appeal upheld the first-instance court ’ s decision.

On 3 June 2010 the Sumgayit City Court extended the applicant ’ s detention for a period of one month. The applicant appealed against the decision reiterating his previous complaints.

On 11 June 2010 the Sumgayit Court of Appeal dismissed the applicant ’ s appeal.

On 6 July 2010 the Sumgayit City Court extended the applicant ’ s detention until 22 July 2010.

On 11 July 2010 the applicant was charged under Article 234.1 (illegal possession of narcotic substances in a quantity exceeding that necessary for personal consumption, without intent to sell) of the Criminal Code.

On 21 July 2010 the Sumgayit City Prosecutor filed the bill of indictment with the Sumgayit City Court.

On 6 August 2010 the Sumgayit City Court held a preliminary hearing. At that hearing, the court decided to remit the case for a new investigation to the prosecution authorities at the request of the prosecutor because of numerous breaches of procedural rules during the pre-trial investigation. The court was silent as to the applicant ’ s detention, even though the latest extension order had expired on 22 July 2010.

On 13 August 2010 the prosecutor asked the Sumgayit City Court to extend the applicant ’ s detention until 7 September 2010. On 16 August 2010 the court rejected the request. However, taking into account the prosecutor ’ s intention to lodge a protest against this decision, it ordered the applicant ’ s detention for a period of seven days.

On 23 August 2010 the Sumgayit Court of Appeal dismissed the prosecutor ’ s protest and upheld the first-instance court ’ s decision. The applicant was released from detention.

Following the applicant ’ s release from detention, on 25 August 2010 the investigator decided to place the applicant under police supervision. According to this preventive measure, the applicant was not allowed to change or to leave his place of residence without the authorisation of the police.

B. The applicant ’ s ill-treatment and remedies used

On 10 March 2010, at the hearing before the Sumgayit City Court concerning the applicant ’ s detention, the applicant submitted that he had been ill-treated in police custody with the aim of extracting a confession from him and showed the signs of ill-treatment on his body. However, no action was taken by the court.

On 3 and 10 April 2010 the applicant ’ s lawyer asked the investigator to order a forensic examination of the applicant, as well as to carry out a questioning of the applicant and a confrontation between the applicant and other co-accused in his presence. No action was taken by the investigator.

The applicant ’ s lawyer informed the O mbudsman of the applicant ’ s ill ‑ treatment, his unlawful detention and the investigator ’ s failure to order a forensic examination and to carry out relevant procedural actions.

Following a meeting between the applicant and the agents of the Ombudsman ’ s Office, on 22 April 2010 the Ombudsman requested the Prosecutor General ’ s Office to carry out a forensic examination of the applicant and to investigate the applicant ’ s ill-treatment allegations.

On 5 May 2010 the investigator ordered a forensic examination of the applicant. On 11 May 2010, the applicant was examined by a forensic expert. The applicant submitted that he had been beaten by police officers in the Sumgayit Police Station. The expert confirmed the existence of an abrasion on the left wrist joint of the applicant. The expert noted that it had been caused by a hard blunt object and its time of infliction corresponded to 6 March 2010. The expert did not determine the degree of the injury because it was not an injury causing harm to health.

In the meantime, on an unspecified date, the investigator who was in charge of the case was replaced by another investigator.

On 24 May 2010 the applicant ’ s lawyer asked the investigator to provide him with all the documents relating to the applicant ’ s case, inter alia , search record, record of questioning, record of confrontation, expert opinion.

The applicant ’ s lawyer was provided with copies of the relevant documents on 25 May 2010. He immediately asked for a new forensic examination claiming that the forensic examination of the applicant had been carried out in his absence and in breach of relevant procedural rules.

On 3 June 2010 the investigator ordered a new forensic examination of the applicant.

In the meantime, on 8 June 2010 the Sumgayit City Deputy Prosecutor refused to institute criminal proceedings in connection with the applicant ’ s ill-treatment allegations. He held that it was not established that the applicant had been beaten by police officers or the injury on his left wrist joint had been caused by them.

On 10 June 2010 the applicant was examined by a forensic expert in the presence of his lawyer. The applicant submitted that he had been ill-treated in police custody and gave a detailed description of the ill-treatment in question. The expert noticed numerous bruises and injuries on the applicant ’ s body which had been caused by a hard blunt object. The expert also noticed the injuries on his body caused by high heat. The expert concluded that the time of infliction of these injuries corresponded to three-six months and the characteristics of the injuries did not contradict the applicant ’ s description of ill-treatment.

On an unspecified date the applicant ’ s lawyer lodged a complaint with the Sumgayit City Court under the procedure concerning the review of lawfulness of procedural actions or decisions by the criminal prosecution authority. He complained in particular that the applicant had been ill-treated in police custody, that the investigator had failed to reply to his complaints concerning ill-treatment and that the applicant ’ s procedural rights had been violated within the framework of the criminal proceedings .

At the hearing the court heard the applicant, his lawyer, other accused persons in connection with this case, police officers involved in the applicant ’ s arrest, two investigators who were in charge of the case, the head of the Sumgayit City Police Station and examined the relevant expert opinions. On 25 June 2010 the Sumgayit City Court delivered a decision in which it acknowledged that the applicant had been ill-treated in police custody, that he had been unlawfully detained in the Sumgayit City Police Station and that he had been questioned by the investigator in the absence of his lawyer. As regards the fact of ill-treatment, the court relied on the expert opinions and witness statements. The court also ordered the Sumgayit City Prosecutor ’ s Office to investigate the fact of ill-treatment.

The Sumgayit City Prosecutor lodged a protest against this decision.

On 27 July 2010 the Sumgayit Court of Appeal dismissed the prosecutor ’ s protest finding that the first-instance court ’ s decision was justified. As to the fact of ill-treatment, the appellate court held that the applicant ’ s ill-treatment was based on the expert opinions which confirmed the existence of various injuries on his person. The court further held that the investigator who had replaced the initial investigator in charge of the case also stated before the court that he had noticed injuries on the applicant ’ s person when he had questioned him.

On 24 August 2010 the applicant ’ s lawyer lodged a complaint with the Prosecutor General ’ s Office and the Ministry of Internal Affairs complaining about the prosecution authorities ’ failure to investigate the applicant ’ s ill-treatment.

On 20 September 2010 the Sumgayit City Deputy Prosecutor refused to institute criminal proceedings in connection with the applicant ’ s ill-treatment despite the explicit acknowledgment of the fact of ill-treatment by the court decisions of 25 June 2010 and of 27 July 2010. As to the injuries on the applicant ’ s person, the Deputy Prosecutor concluded that they had not been caused in police custody. In this connection, he noted that the applicant was a drug addict and that “the likelihood that the injuries were caused by “external influences” before his arrest could be considered justified”.

On 8 October 2010 the applicant ’ s lawyer lodged a complaint with the Prosecutor General ’ s Office against this decision. He noted in particular that despite the explicit acknowledgment of the fact of ill-treatment by the relevant court decisions the prosecuting authorities unlawfully refused to investigate the applicant ’ s ill-treatment. No action was taken by the Prosecutor General.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was tortured in police custody a nd that the domestic authorities failed to investigate his allegations of torture.

The applicant complains under Article 5 of the Convention about the unlawfulness of his detention. In particular, he complains (a) that he was not brought before a judge within forty-eight hours following his arrest as required by the domestic law and (b) that he was unlawfully held in detention between 22 July 2010 and 16 August 2010 without any court order.

Relying on Article 5 of the Convention, the applicant further complains that the domestic courts failed to justify the extension of his detention period.

The applicant complains under Article 6 of the Convention about the length of the criminal proceedings.

The applicant complains under Article 2 of Protocol No. 4 to the Convention that the preventive measure placing him under police supervision which prevented him from leaving his place of residence violated his freedom of movement.

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? 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 deprived of his liberty during the period between 6 March 2010 and 10 March 2010? If so, did the deprivation of liberty during this period fall within Article 5 § 1 of the Convention?

3. Was the applicant ’ s detention during the period between 22 July 2010 and 16 August 2010 in compliance with Article 5 § 1 of the Convention?

4. 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?

5. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

6. Was the restriction placed on the applicant ’ s freedom of movement in accordance with the law and necessary in terms of Article 2 §§ 2 and 3 of Protocol No. 4?