IGBAL HASANOV v. AZERBAIJAN - 46505/08 - Chamber Judgment [2015] ECHR 40 (15 January 2015)

In the case of Igbal Hasanov v. Azerbaijan,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 2 December 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 46505/08) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Igbal Bahman oglu Hasanov (İqbal Bəhmən oğlu Həsənov - “the applicant”), on 22 September 2008.

2. The applicant was represented by Mr V. Mahmudov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged that he had been ill-treated while in police custody and that the domestic authorities had failed to investigate his complaints in this respect.

4. On 31 August 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and prior to his arrest lived in Jalilabad.

A. The applicant’s arrest, alleged ill-treatment and actions by the prosecuting authorities

6. On 8 June 2008 an operation was planned for the applicant’s arrest following allegations made by two previously arrested persons to the Organised Crime Unit of the Ministry of Internal Affairs (Mütəşəkkil Cinayətkarlığa Qarşı Mübarizə İdarəsi, hereinafter “the OCU”) that he was a drug dealer and had sold them narcotic substances.

7. At around 2.30 a.m. on 9 June 2008, when the applicant and an acquaintance of his were driving in the latter’s car in Baku, they were stopped and searched by the police. A packet of heroin was found on each of them. Some other narcotic substances were also found inside the car. The applicant and his acquaintance were arrested immediately after the search and taken to the department for narcotics-related crime of the Ministry of Internal Affairs. They were held there until 9 a.m. on 9 June 2008.

8. At 9 a.m. on 9 June 2008 an investigator drew up a record of the applicant’s arrest as a suspect (tutma protokolu). The applicant was then taken to the temporary detention facility of the OCU.

9. The following day, on 10 June 2008, the applicant was returned to the investigator for questioning. However, according to the record drawn up, the applicant refused to answer any questions in the absence of his lawyer.

10. The applicant’s family appointed a lawyer for the applicant on 10 June 2008. The lawyer tried to organise a meeting with the investigator and the applicant and this was eventually scheduled for 11 June 2008.

11. According to the applicant, during the night of 10 to 11 June 2008 he was ill-treated by four police officers in the temporary detention facility of the OCU.

12. On 11 June 2008 the applicant was returned to the investigator for further interrogation in the latter’s office in the presence of his lawyer. According to the applicant, he was at that time limping and there were injuries to his feet which were swollen and bruised. It appears from the record of questioning of 11 June 2008 that the applicant stated that the previous night he had been ill-treated by four plain-clothes police officers in the temporary detention facility of the OCU with the aim of extracting a confession that he was a drug dealer. He had been beaten with a truncheon on the soles of his feet and the beating had lasted for about one hour. The applicant also alleged that he had been threatened with electric shocks if he did not confess. As to the identity of the perpetrators, he stated that he did not know them, but he would recognise them if he saw them again. The applicant and his lawyer asked the investigator to order a forensic examination of the applicant and his transfer to another detention facility. The record of questioning of 11 June 2008 was signed by the applicant, the lawyer and the investigator.

13. It does not appear that the investigator took any immediate action upon the applicant’s allegations of ill-treatment. Following the applicant’s transfer, on 21 June 2008, from the temporary detention facility of the OCU to detention facility No. 1., on 12 July 2008 the investigator inquired about the applicant’s state of health upon arrival. By letter of 16 July 2008 the head of detention facility No. 1 informed the investigator that the applicant had been examined by a doctor on arrival at the detention facility and that no injury had been found.

14. On 29 July 2008, during a further questioning, the applicant complained to the investigator that, despite his complaint of ill-treatment and his request for a forensic examination during the questioning of 11 June 2008, no investigation had been carried out in this connection. The record of questioning of 29 July 2008 was signed by the applicant, the lawyer and the investigator. It does not appear, however, that the investigator took any further action in respect of the applicant’s particular complaints concerning his alleged ill-treatment.

15. On 14 August 2008 the applicant complained to the Deputy Prosecutor General, who was the supervising prosecutor in the applicant’s case. He submitted that, although two months had elapsed since 11 June 2008, the date on which he had informed the investigator about his ill-treatment, no investigation had been carried out in that respect. The applicant did not receive a reply to his complaint.

B. The applicant’s detention on remand

16. On 11 June 2008 the applicant was formally charged with criminal offences under Articles 234.4.1 and 234.4.3 of the Criminal Code (illegal sale of large quantities of narcotic substances, committed by an organised group). On the same day the Narimanov District Court ordered the applicant’s remand in custody for a period of three months. At the hearing before the court, the applicant complained that he had been ill-treated by the police officers in the temporary detention facility of the OCU. However the court did not address that issue in its decision.

17. It appears, however, from the case file that on 12 June 2008 the judge of the Narimanov District Court who had ordered the applicant’s remand in custody sent a letter to the head of the OCU asking for information about the applicant’s allegation of ill-treatment. It transpires from the case file that the judge did not receive a reply to his letter.

18. On 12 June 2008 the applicant appealed against the first-instance court’s decision of 11 June 2008, maintaining, inter alia, his complaint of ill-treatment in the OCU’s temporary detention facility.

19. On 20 June 2008 the Baku Court of Appeal upheld the order to remand the applicant in custody. The appellate court, however, made no mention of the applicant’s allegation of ill-treatment.

C. Separate court complaint concerning ill-treatment

20. On 11 June 2008 the applicant lodged a separate complaint with the Narimanov District Court about his alleged ill-treatment under the procedure established by Articles 449-451 of the Code of Criminal Procedure concerning appeals against the prosecuting authorities’ actions and decisions. He reiterated his complaints that on 10 June 2008 he had been beaten with a truncheon by four police officers in the temporary detention facility of the OCU and that he had been threatened with electric shocks if he did not confess. He asked the court to acknowledge the fact that he had been tortured.

21. On 18 June 2008 the Narimanov District Court examined the complaint in the applicant’s absence, but in the presence of his lawyer. The court dismissed the allegation of torture, finding that the applicant had failed to substantiate his allegation. The relevant part of the decision reads as follows:

“At the court hearing, although the applicant’s lawyer V.H. argued that I. Hasanov [the applicant] had been subjected to torture, he failed to submit any evidence in this respect to the court.

At the court hearing the applicant’s lawyer V.H. merely submitted that I. Hasanov had been subjected to torture by four persons whom they did not know.

The fact that I. Hasanov had been tortured was not proved before the court. For this reason, the part of the complaint requesting the court to declare unlawful I. Hasanov’s torture should be dismissed.”

22. On 20 June 2008 the applicant appealed against the first-instance court’s decision. He complained, in particular, that the first-instance court had failed to duly examine his complaint of ill-treatment, as the hearing had been held in his absence, that the perpetrators of the ill-treatment had not been questioned by the court and that the court had failed to conduct any investigation into his ill-treatment.

23. On 3 July 2008 the Baku Court of Appeal dismissed the applicant’s appeal. The relevant part of the decision reads as follows:

“It appears from the case file that the accused and his lawyer did not complain to the investigator or to the Prosecutor General of the Republic of Azerbaijan about the ill-treatment of I. Hasanov.

For this reason, the lawyer’s complaint in this respect to the court was not examined and the court did not produce any document in this connection.

Therefore, the arguments of the appeal are unsubstantiated.”

D. The applicant’s trial and conviction

24. On 6 August 2008 the prosecutor filed an indictment with the Assize Court.

25. On 10 November 2008 the Assize Court convicted the applicant on all counts and sentenced him to twelve years’ imprisonment.

26. On 15 January 2009 the Baku Court of Appeal upheld the applicant’s conviction but reduced his sentence to nine years’ imprisonment.

27. On 19 May 2009 the Supreme Court upheld the Baku Court of Appeal’s judgment.

II. RELEVANT DOMESTIC LAW

A. The Constitution of the Republic of Azerbaijan

28. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows:

“No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...”

B. Criminal responsibility for torture and inhuman and degrading treatment

29. In accordance with the Criminal Code, as in force at the material time, torture of an individual who is under detention or otherwise deprived of his or her liberty is a crime punishable by imprisonment for a term of seven to ten years (Article 113). The infliction of physical or psychological suffering on an individual by way of systematic beating or other violent actions performed by a public official in his official capacity is a crime punishable by imprisonment for a term of five to ten years (Article 133). Compelling, by a prosecutor or an investigator, a suspect, an accused, a victim, a witness to testify, or an expert to deliver a forensic report is a crime punishable by imprisonment for a term of up to three years (Article 293.1). If the same actions were carried out under torture, the perpetrators are punishable by imprisonment for a term of five to ten years (Article 293.2).

C. The Code of Criminal Procedure (“the CCrP”)

30. In accordance with Article 37 of the the CCrP, criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge actions or decisions of the prosecuting authorities concerning, inter alia, refusal to institute criminal proceedings or to terminate criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

31. The applicant complained that he had been ill-treated in the temporary detention facility of the OCU and that the domestic authorities had failed to investigate his allegation of ill-treatment. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged failure to carry out an effective investigation

(a) The parties’ submissions

33. The Government submitted that the domestic courts had duly examined the applicant’s allegation of ill-treatment.

34. The applicant maintained his complaint, stating that despite his numerous complaints the domestic authorities had failed to conduct an investigation of his ill-treatment.

(b) The Court’s assessment

35. Where an individual raises an arguable claim that he or she has been ill-treated by the police in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. This investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions 1998-VIII, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).

36. An investigation into allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions (see Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004-IV (extracts)).

37. Turning to the circumstances of the present case, the Court observes that during his first questioning by the investigator in the presence of his lawyer on 11 June 2008 the applicant informed the investigator of his alleged ill-treatment, asking him to order a forensic examination. The applicant’s complaints were noted in the record of questioning of 11 June 2008 drawn up by the investigator. The Court considers that the applicant’s complaint made before the investigator contained enough specific information - the date, place and nature of the alleged ill-treatment - (see paragraph 12 above) to constitute an arguable claim in respect of which the investigator was under an obligation to conduct an effective investigation.

38. The applicant reiterated his allegation of ill-treatment during his questioning of 29 July 2008 by the investigator. He also complained of ill-treatment to the Deputy Prosecutor General on 14 August 2008 (see paragraphs 14-15 above). However, no criminal inquiry was launched.

39. The Court further observes that the applicant raised the same complaint before the domestic courts which had ordered his remand in custody. However, they ignored his allegation of ill-treatment and their decisions made no mention of it (see paragraphs 16-19 above). As to the separate proceedings instituted by the applicant about his alleged ill-treatment, the Court notes that in these proceedings the domestic courts merely dismissed the applicant’s allegation of ill-treatment as unsubstantiated without conducting an effective court investigation. In particular, the domestic courts failed to order a forensic examination of the applicant or to hear the applicant, the alleged perpetrators of the ill-treatment, the applicant’s cellmates or any other possible witness. The foregoing considerations are sufficient to enable the Court to conclude that there was no effective investigation of the applicant’s claim of ill-treatment.

40. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

2. Alleged ill-treatment of the applicant by the police

(a) The parties’ submissions

41. The Government submitted that the applicant’s allegations were unfounded and that he had failed to submit any evidence in support of his allegation of ill-treatment. In particular, they pointed out that the letter of 16 July 2008 proved that there were no injuries on the applicant’s body when he arrived at detention facility No. 1 on 21 June 2008.

42. The applicant maintained his complaint, submitting that he had been ill-treated in the temporary detention facility of the OCU on 10 June 2008 with the aim of extracting a confession from him. As to the letter of 16 July 2008 from the head of detention facility No. 1, the applicant submitted that the doctor who had examined him on his arrival at detention facility No. 1 on 21 June 2008 was not a competent forensic expert and that the injuries to his feet were no longer visible on 21 June 2008.

(b) The Court’s assessment

43. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions, and no derogation from it is permissible under Article 15 § 2, even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov and Others, cited above, § 93).

44. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). In this connection, the Court attaches a particular weight to the medical evidence, such as forensic report, medical record or any other medical finding, confirming the existence of injuries on the applicant’s body (see, among many other authorities, Mammadov v. Azerbaijan, no. 34445/04, § 61, 11 January 2007; Tahirova v. Azerbaijan, no. 47137/07, § 40, 3 October 2013; and Layijov v. Azerbaijan, no. 22062/07, § 44, 10 April 2014). Moreover, a wide variety of other evidence, such as witness statement, video recording, tape recording or photograph, may also be submitted in support of the allegation of ill-treatment (see, among many other authorities, Muradova v. Azerbaijan, no. 22684/05, § 108, 2 April 2009; Rizvanov v. Azerbaijan, no. 31805/06, § 48, 17 April 2012; and Najafli v. Azerbaijan, no. 2594/07, § 37, 2 October 2012).

45. Where the events at issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336, and Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In particular, where an individual was in good health when taken into police custody but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-11, Series A no. 241-A, and Selmouni, cited above, § 87).

46. The Court observes that in the present case the applicant presented a detailed description of his alleged ill-treatment in police custody. The ill-treatment, as described by the applicant, consisted of being subjected to falaka (beating of the soles of the feet) and being threatened with electric shocks (see paragraph 12 above). The applicant and his lawyer raised the same allegations before the domestic prosecuting authorities and courts.

47. However, the applicant did not provide any medical evidence in support of his allegation of ill-treatment. Nor has he submitted to the Court any other evidence confirming the presence of any traceable injury on his person (compare with Rizvanov, cited above, § 48, and Najafli, cited above, § 37). Moreover, the letter of 16 July 2008 from the head of detention facility No. 1 indicates that no injury on the applicant’s body was observed on his arrival at detention facility No. 1 on 21 June 2008. In fact, the case file does not contain any document or other material which could support the applicant’s allegations.

48. In these circumstances, having regard to the parties’ submissions and all the materials in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the applicant was subjected to treatment contrary to Article 3, as alleged (see Jannatov v. Azerbaijan, no. 32132/07, §§ 59-60, 31 July 2014).

49. The Court, however, underlines that its inability to reach any conclusions as to whether there has been, in substance, treatment prohibited by Article 3 of the Convention derives, to a large extent, from the failure of the domestic authorities to carry out an effective investigation at the relevant time (see Lopata v. Russia, no. 72250/01, § 125, 13 July 2010, and Gharibashvili v. Georgia, no. 11830/03, § 57, 29 July 2008).

50. Consequently, the Court cannot establish that there has been a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill-treatment while in police custody.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

52. The applicant claimed EUR 100,000 in compensation for non-pecuniary damage.

53. The Government contested the amount claimed as unsubstantiated and excessive.

54. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded. However, the amount claimed is excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 10,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

55. The applicant also claimed EUR 3,000 for costs and expenses incurred before the domestic courts and the Court. This claim was not itemised or supported by any documents.

56. The Government submitted that the applicant had failed to substantiate his claim.

57. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes that the applicant was represented before the Court and it is undisputed that the representative provided relevant documentation and observations, as requested by the Court. In these circumstances, the Court finds it appropriate to award the applicant EUR 2,000 in respect of costs and expenses (see Rzakhanov v. Azerbaijan, no. 4242/07, § 92, 4 July 2013).

C. Default interest

58. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 3 of the Convention under its procedural limb;

3. Holds that there has been no violation of Article 3 of the Convention under its substantive limb;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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