FIRST SECTION

Application no. 59135/09 Emin HUSEYNOV against Azerbaijan lodged on 27 October 2009

STATEMENT OF FACTS

The applicant, Mr Emin Huseynov , is an Azerbaijani national, who was born in 1979 and lives in Baku. He is represented before the Court by Mr R. Hajılı and Mr E. Sadigov , lawyers practising in Baku.

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

The applicant was an independent journalist and the chairman of the Institute for Reporters ’ Freedom and Safety (“IRFS”), a non-governmental organisation specialised in the protection of journalists ’ rights. The applicant also collaborated with the Turan information agency as a reporter.

On 14 June 2008 a group called “ Che Guevara Fan Club” held a gathering at a private café in Baku to celebrate the eightieth anniversary of the birth of Che Guevara. The applicant, accompanied by two other colleagues from IRFS, participated in this gathering.

The gathering began at noon and approximately 30 minutes after its beginning, about 30 police officers entered the café. They suspended the gathering and decided to take the participants to a police station.

The applicant presented himself as a journalist and the chairman of IRFS and asked the police officers to present themselves and to release his arrested colleagues. The applicant also informed Turan about the police intervention. In response, one of the police officers who was apparently in charge of the intervention began to insult the applicant and ordered other police officers to take him to the police station.

The applicant was taken to a police car by four police officers, who used force against him. In particular, they punched and kicked him in the stomach.

After his arrival at the police station, he was separated from other arrested persons and was taken to the room of the Deputy Head of the Police Station no. 22, A.K. Four police officers entered the room and threatened the applicant in the presence of A.K. One of the police officers, O.A., shouted at the applicant and took out his gun. Hitting his gun on the table, he cried “I can eliminate you”, “I can arrest you”. Then he hit the applicant in the neck with his elbow; as a result, the applicant lost consciousness.

When the applicant regained consciousness, he asked the police officers to call an ambulance, because he did not feel well. They refused to do so, but took him out of the room. The applicant ’ s colleagues, who saw him in the corridor, asked other members of IRFS to call an ambulance. In the meantime, the applicant again lost consciousness.

The applicant was admitted to hospital with the diagnosis of cranial trauma and neurological reaction. The applicant stayed in the intensive care unit of the hospital for four days. He was checked out of the hospital on 25 June 2008.

A criminal inquiry was launched in connection with the incident of 14 June 2008. On 15 June 2008 the applicant was heard by an investigator of the Nasimi District Police Office in the hospital. The applicant submitted that following his arrest on 14 June 2008 he had been beaten, threatened and insulted by police officers.

On 18 June 2008 the applicant was examined by a forensic expert. The forensic expert noted that the applicant had been admitted to the hospital with the diagnosis of cranial trauma and neurological reaction and that his current treatment was related to numerous diseases that he had previously suffered. The expert also concluded that there were no objective signs of ill-treatment on the applicant ’ s person.

On 27 June 2008 the investigator refused to institute criminal proceedings, finding that there was no evidence that the applicant had been ill-treated by the police.

The applicant lodged a complaint against this decision with the Nasimi District Court. Relying on Articles 3, 5, 10 and 11 of the Convention, the applicant noted in particular that he had been ill-treated by the police, unlawfully arrested and taken to the police station and that the police intervention had been unlawful and had constituted an interference with his journalistic activity. In support of his claim, the applicant relied on the submissions of other participants in the gathering of 14 June 2008. He also noted that the investigator had not interrogated the police officers who were involved in the ill-treatment.

On 31 March 2009 the Nasimi District Court dismissed the applicant ’ s complaint finding the investigator ’ s decision lawful.

On 6 April 2009 the applicant appealed against this decision reiterating his previous complaints.

On 27 April 2009 the Baku Court of Appeal upheld the first-instance court ’ s decision.

In the meantime, the applicant also lodged a civil action against the Nasimi District Police Office asking for compensation. He complained that he had been ill-treated by the police, that he had been unlawfully arrested and taken to the police station, that the police intervention in the gathering had been unlawful and that there had been an unlawful interference with his journalistic activity.

On 25 July 2008 the Nasimi District Court refused to admit his action finding that it did not comply with the procedural requirements for lodging a complaint.

On 2 September 2008 the Baku Court of Appeal upheld the first-instance court ’ s decision.

On 17 November 2008 the Supreme Court quashed the Baku Court of Appeal ’ s decision and remitted the case to the lower courts for a new examination.

On 17 June 2009 the Nasimi District Court, having examined the applicant ’ s action on the merits, decided to dismiss it. The court held in particular that it had not been established that the applicant had been ill ‑ treated by the police. In this connection, the court relied on the submissions of the police officers and the forensic expert ’ s conclusion that there were no signs of injury on the applicant ’ s person. The court further found that the applicant had been taken to the police station because he had not had his identity card on him. The court also held that the police intervention had been lawful, since a gathering in a café in the city centre disturbed surrounding people and consequently the police had intervened.

On 3 August 2009 the applicant appealed against this decision reiterating his previous complaints. He further noted that the police officers had contradicted each other in their submissions before the first-instance court in connection with his ill-treatment. He also noted that there had been no basis for his arrest and that the police interference with the gathering had been unlawful.

On 7 October 2009 the Baku Court of Appeal dismissed the applicant ’ s appeal. However, the applicant was not provided with a copy of the Baku Court of Appeal ’ s decision.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was ill-treated by the police and that the domestic authorities failed to investigate his allegations of ill-treatment.

The applicant complains under Article 5 of the Convention that the police unlawfully arrested and took him to the police station.

The applicant complains under Article 10 of the Convention about the violation of his right to freedom of expression, since the police prevented him from exercising his journalistic activity and used force against him.

He also complains under Article 11 of the Convention that the police interference with the gathering in a private café violated his right to freedom of peaceful assembly.

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, did the deprivation of liberty on 14 June 2008 fall within paragraphs (a), (b), (c), (d), (e) of this provision? Was a detention record ever compiled? If it was, the Government are requested to submit a copy of it, as well as any other documents related to the applicant ’ s detention.

3. What was the applicant ’ s role in the assembly of 14 June 2008? Was the assembly peaceful? Was an assembly held in a private café subject to prior notification under Azerbaijani law? Was there a lawful basis for the dispersal of the assembly by the police? If the applicant could be regarded as a participant of the assembly, has there been an interference with his freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?

4. If the applicant was providing news coverage of the assembly in his capacity as a journalist, has there been an interference with his freedom of expression, in particular his right to impart information, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?