European Court of Human Rights

FIRST SECTION

CASE OF MUSTAFAYEV AND OTHERS v. AZERBAIJAN

(Applications nos. 25054/17 and 6 others - see appended list)

JUDGMENT
 

STRASBOURG

13 June 2024

This judgment is final but it may be subject to editorial revision.

In the case of Mustafayev and Others v. Azerbaijan,

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

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Ivana Jelić, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table ("the applicants"), on the various dates indicated therein;

the decision to give notice of the complaints concerning Article 3 (raised in all applications) and Article 13 (raised in all applications except no. 25054/17) to the Azerbaijani Government ("the Government") represented by their Agent, Mr Ç. Əsgərov, and to declare inadmissible the remainder of applications nos. 69510/17, 70443/17, 70521/17, 70535/17 and 75035/17;

the parties' observations;

Having deliberated in private on 21 May 2024,

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

SUBJECT MATTER OF THE CASE

1.  The present applications primarily concern the alleged ill-treatment of the applicants during their arrest, transportation and/or detention and the alleged absence of an effective investigation in that regard.

2.  The applicants are either members or supporters of an unregistered religious movement, Müsəlman Birliyi ("the MB"), or are perceived by the authorities as such. The MB was established in the beginning of 2015.

3.  The applicants were arrested either during or in the aftermath of the so-called "Nardaran events" of 26 November 2015. They were subsequently convicted of a number of serious crimes (the relevant proceedings are the subject of application no. 47347/18, which is pending before the Court).

4.  On the day of the events, 26 November 2015, armed police officers of the Organised Crime Unit of the Ministry of Internal Affairs ("the OCU") carried out an operation ("the operation") which involved entering a house in Nardaran, a suburb of Baku, where a number of people, including the applicants, were attending a religious gathering.

5.  According to police records, the operation was organised following information that a founder of the MB and several others were, among other things, gathering to prepare a violent seizure of power, mass disorder and terrorist acts, organising armed groups and obtaining weapons.

6.  During the operation shots were fired, killing six people (four Nardaran residents who had attended the gathering and two police officers) and injuring many others. According to police records, among the items found and seized at the scene were weapons, explosive substances and booklets containing calls for violence.

7.  Sometime after their arrest the applicants complained to the prosecuting authorities that they had, inter alia, been subjected to ill-treatment during their arrest, transportation and/or detention (for details see the appended table).

8.  The prosecuting authorities ignored the complaint by the applicant in application no. 75035/17. In respect of all the remaining applications the prosecuting authorities rejected the applicants' complaints of ill-treatment as groundless and refused to open criminal investigations. In the case of the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17 and 70535/17, they also held that the bodily injuries the applicants had sustained had been caused during their arrest as a result of their violent armed resistance to the police officers.

9.  The applicants lodged complaints with the domestic courts against the inaction or the decisions of the prosecuting authorities, but they were unsuccessful (for details see the appended table).

10.  In November 2018 the representative of the applicant in application no. 25054/17 attempted to meet him in connection with his application pending before the Court. The applicant's representative was denied the meeting on the ground that "the Management Board of the Bar Association ... had brought an action before a [domestic] court asking that [the representative] be [disbarred] and [his] activity as an advocate was [therefore] suspended until a decision of the [domestic] court took effect".

11.  On an unspecified date the applicant in application no. 27247/17 allegedly gave his representative handwritten statements concerning, inter alia, his application before the Court. However, the Gobustan prison guards allegedly seized those papers from the representative, inspected them and failed to return them.

12.  All the applicants complained before the Court that they had been subjected to ill-treatment during the arrest despite not offering any resistance to the police, as well as during their detention, that the domestic authorities had failed to conduct an effective investigation into their complaints of ill-treatment, and that the purpose of the ill-treatment had been to extract self-incriminating statements from them or statements incriminating other people arrested in connection with the Nardaran events. Furthermore, they complained that they had not been allowed to contact their families following their arrest and had not been given access to lawyers of their own choice for some time while in police custody, and that such restrictions had been aimed at and resulted in, inter alia, the disappearance of the traces of the alleged ill-treatment.

13.  The applicants also complained that they had been held in the temporary detention facility of the OCU for periods in excess of the statutory time-limit for detention in police custody and that that fact had increased their vulnerability and served as an important factor enabling their ill-treatment.

14.  All applicants, except the applicant in application no. 25054/17, also complained that after their arrest they had been transported in an ordinary furniture removal van (or vans).

15.  These applicants further complained under Article 13 of the Convention that they had not had effective remedies for their complaints under Article 3 of the Convention.

16.  Furthermore, in their observations the applicants in applications nos. 25054/17 and 27247/17 complained of a breach of Article 34 of the Convention on account of, respectively, the denial of a meeting with a representative before the Court (see paragraph 10 above) and the seizure and inspection of handwritten statements and the failure to return them (see paragraph 11 above).

THE COURT'S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

17.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION AS CONCERNS THE ILL-TREATMENT

18.  The applicants maintained their complaints as summarised in paragraphs 12-13 above.

19.  The Government submitted, inter alia, that the applicants had not been subjected to any ill-treatment. Force had been used against the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17, 70535/17 and 75035/17 during their arrest because they had resisted police officers using weapons, and therefore they had been injured before they could be disarmed. Furthermore, the domestic authorities had conducted an effective investigation into the applicants' allegations of ill-treatment.

20.  The Court notes that the complaints summarised in paragraphs 12-13 above are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

21.  The general principles concerning the obligation of the High Contracting Parties under Article 3 of the Convention not to subject persons under their jurisdiction to inhuman or degrading treatment or torture have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90, ECHR 2015). The general principles with respect to the procedural obligations of the High Contracting Parties under Article 3 of the Convention to investigate acts of ill-treatment have likewise been set out in detail in Bouyid (ibid., §§ 115-23). The Court notes that those principles are equally pertinent to the present applications.

22.  Furthermore, in a number of cases against Azerbaijan the Court has previously found a substantive violation of Article 3 where the domestic authorities and the Government had failed to provide satisfactory and convincing explanations concerning injuries which had occurred during the applicants' arrest and/or detention, and a procedural violation of Article 3 where the domestic authorities had either failed altogether to examine complaints of ill-treatment or failed to comply with the standards of an effective investigation such as independence, adequacy, promptness and reasonable expedition, and participation of the victim (see, among many other authorities, Mammadov v. Azerbaijan, no. 34445/04, §§ 54-79, 11 January 2007; Muradova v. Azerbaijan, no. 22684/05, §§ 102-36, 2 April 2009; and Najafli v. Azerbaijan, no. 2594/07, §§ 32-56, 2 October 2012).

23.  Turning to the present applications, the Court observes that the applicants' complaints to the domestic authorities contained enough specific information - such as the dates, place and nature of the alleged ill-treatment - to constitute an arguable claim in respect of which those authorities were under an obligation to conduct an effective investigation. The allegations of ill-treatment in most of the applications were supported by medical evidence (see the appended table).

24.  Nevertheless, the investigating authorities either ignored the complaints or, having conducted initial inquiries, refused to open criminal cases. The domestic courts in their turn upheld the decisions of the prosecuting authorities and/or found the complaints of ill-treatment to be groundless.

25.  In view of the material in its possession and the parties' submissions, the Court considers that the criminal investigations into the applicants' respective complaints were plagued by a combination of the same or similar defects which rendered them ineffective (for details see the appended table).

26.  The Court therefore concludes that the investigations into the applicants' allegations of ill-treatment were ineffective.

27.  There has accordingly been a violation of Article 3 of the Convention under its procedural limb in respect of all the applicants.

28.  As to the complaints under the substantive limb of Article 3 of the Convention, the Court notes that the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17, 70535/17 and 75035/17 were arrested during the "Nardaran events". In the course of that operation shots were fired, killing six people, including two police officers, and injuring many others (see paragraph 6 above). According to the Government, the applicants had offered armed resistance to the police and had been injured before they could be disarmed; according to the applicants, they had not resisted the police and had been injured owing to police brutality.

29.  Given the particular circumstances of the arrest and having regard to the parties' submissions and all the material in its possession, the Court considers that the evidence before it does not enable it to find beyond reasonable doubt that the injuries sustained by the above-mentioned applicants during their arrest were the result of treatment contrary to Article 3 as alleged by them.

30.  Given the absence of any evidence, the Court also cannot conclude that the applicant in application no. 25054/17, who was arrested in the aftermath of the "Nardaran events", was subjected to treatment contrary to Article 3 as alleged by him either during the arrest or during his detention.

31.  Likewise, as concerns the applicant in application no. 705365/17, there is no medical or other evidence to allow the Court to conclude that he was subjected to ill-treatment as alleged during his detention.

32.  The Court emphasises, however, that its inability to reach any conclusions as to whether there was, in substance, any treatment prohibited by Article 3 of the Convention derives, at least in part, from the failure of the domestic authorities to carry out effective investigations.

33.  The Court further notes that in applications nos. 27247/17, 69510/17, 70443/17, 70521/17 and 75035/17 there are discrepancies between the medical records drawn up immediately following the applicants' arrest and the ones issued later (see the appended table). The latter records demonstrate that the applicants (except for the applicant in application no. 69510/17) sustained new injuries during their detention. Neither the domestic authorities nor the Government gave any explanations as to the cause of those injuries. In application no. 69510/17 the second medical examination demonstrated the presence of metal pieces in the applicant's broken finger, yet no explanation was given in that regard either.

34.  The above factors are sufficient to give rise to a presumption in favour of the above-mentioned applicants' account of events and to satisfy the Court that their allegations of having been ill-treated during their detention are credible. Neither the domestic authorities nor the Government provided a convincing rebuttal of that presumption.

35.  There has accordingly been a violation of Article 3 of the Convention under its substantive limb in respect of the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17 and 75035/17, and no violation of Article 3 of the Convention under the same limb in respect of the applicants in applications nos. 25054/17 and 70535/17.

36.  Lastly, the Court notes that following their arrest all the applicants were assigned State-funded lawyers. None of those lawyers took any procedural actions on the applicants' behalf. In particular, those lawyers did not lodge any complaints of ill-treatment even though the applicants had visible injuries. The complaints were lodged only after lawyers of the applicants' own choosing joined the proceedings. Furthermore, there is nothing in the material submitted to the Court to suggest that the applicants were given an effective opportunity to contact their families. The Court emphasises in that connection that contact with family members and access to a lawyer are among the fundamental safeguards against coercion and ill-treatment (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 255, 13 September 2016, and Simeonovi v. Bulgaria [GC], no. 21980/04, § 112, 12 May 2017). The Court considers that the applicants' lack of effective opportunity to contact their family members and their lack of effective access to legal assistance were additional factors contributing to the findings above under both limbs of Article 3.

37.  In view of the above findings, there is no need to examine the additional complaints summarised in paragraph 13 above.

3. OTHER COMPLAINTS

38.  All or some of the applicants also complained under Article 3, concerning their transportation in a van (or vans) (see paragraph 14 above), as well as under Articles 13 and 34 of the Convention (see paragraphs 15-16 above). Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the admissibility or merits of the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  The applicants each claimed the following amounts in respect of non-pecuniary damage:

(i)  100,000 euros (EUR) in application no. 25054/17;

(ii)  EUR 50,000 in applications nos. 27247/17, 69510/17, 70443/17 and 75035/17;

(iii)  EUR 45,000 in applications nos. 70521/17 and 70535/17.

40.  They each also claimed the following amounts for costs and expenses incurred before the domestic courts and/or the Court:

(i)  EUR 1,612.55 in application no. 25054/17;

(ii)  EUR 2,103.17 in application no. 27247/17;

(iii)  EUR 3,000 in applications nos. 69510/17, 70443/17 and 75035/17;

(iv)  EUR 8,800 in applications nos. 70521/17 and 70535/17.

41.  The Government mainly argued that the claims were unsubstantiated or excessive.

42.  The Court awards EUR 7,500 to each of the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17 and 75035/17 and EUR 5,000 to each of the applicants in applications nos. 25054/17 and 70535/17 in respect of non-pecuniary damage, plus any tax that may be chargeable on those sums.

43.  Having regard to the documents in its possession, the Court considers it reasonable to award each of the applicants EUR 1,000 in respect of costs under all heads, plus any tax that may be chargeable to the applicants, and dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaints concerning ill-treatment during arrest and detention under Article 3 admissible;
3. Holds that there has been a violation of Article 3 of the Convention under its procedural limb in respect of all the applicants;
4. Holds that there has been a violation of Article 3 of the Convention under its substantive limb in respect of the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17 and 75035/17;
5. Holds that there has been no violation of Article 3 of the Convention under its substantive limb in respect of the applicants in applications nos. 25054/17 and 70535/17;
6. Holds that there is no need to examine the admissibility and merits of the remaining complaints;
7. Holds

(a)  that the respondent State is to pay, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 7,500 (seven thousand five hundred euros) to each of the applicants in applications nos. 27247/17, 69510/17, 70443/17, 70521/17 and 75035/17, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 5,000 (five thousand euros) to each of the applicants in applications nos. 25054/17 and 70535/17, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 1,000 (one thousand euros) to each of the applicants, plus any tax that may be chargeable to the applicants, 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;

8. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 13 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President

APPENDIX

List of cases: