ABISHOV proti Ázerbajdžánu

FIRST SECTION

CASE OF ABISHOV v. AZERBAIJAN

(Application no. 46419/16)

JUDGMENT

STRASBOURG

23 March 2023

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

In the case of Abishov v. Azerbaijan,

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

Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 46419/16) 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”) on 3 August 2016 by an Azerbaijani national, Mr Vugar Dilavar oglu Abishov (“the applicant”), who was born in 1978 and lives in Sumgayit, and was represented before the Court by Mr S.A.O. Karimov, a lawyer practising in Baku;

the decision to give notice of the complaints under Article 3 of the Convention concerning the applicant’s alleged ill-treatment and the lack of an effective investigation in that respect to the Azerbaijani Government (“the Government”), represented by their Agent, Mr Ç. Əsgərov, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 28 February 2023,

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

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s alleged ill-treatment by law‑enforcement officers during his arrest and later while in police custody and the lack of an effective investigation in that respect.

1. alleged ill-treatment of the applicant

2. According to the applicant, on 23 October 2015 he had been in a café with an acquaintance, R.V. At around 11 p.m. plain-clothed police officers had entered the café and beaten them up and had then taken them to the Organised Crime Unit of the Ministry of Internal Affairs of the Republic of Azerbaijan (“the OCU”), where the beatings continued. As a result of having been pressured and beaten, the applicant had signed a statement dictated to him by the police officers in which he confessed to drug-related offences.

3. On 26 October 2015 the applicant was taken to the Narimanov District Court, where a judge authorised his pre-trial detention for four months. The applicant stated to his lawyer and the judge that he had been tortured by the police officers at the OCU. The judge mentioned that statement in the detention order and also sent a letter to the Prosecutor General’s Office ordering an investigation into the alleged ill-treatment.

4. On 30 October 2015 the Baku Court of Appeal dismissed an appeal by the applicant against the detention order.

2. investigation INTO the applicant’s alleged ill‑treatment

5. As noted above, on 26 October 2015 the Narimanov District Court ordered the Prosecutor General’s Office to investigate the applicant’s alleged ill-treatment.

6. On 29 October 2015 the applicant’s lawyer also wrote to the Prosecutor General’s Office asking that the alleged ill-treatment of the applicant be investigated.

7. According to the records of the Baku pre-trial detention facility, when the applicant had been taken there on 3 November 2015, he had been examined by medical personnel, who had discovered bruises on both of his arms and on his right leg.

8. On 4 November 2015 the prosecutor in charge of the investigation into the alleged ill-treatment ordered a medical examination of the applicant.

9. On 20 November 2015 medical experts examined the applicant. According to their report of 23 November 2015, they found no signs of torture or ill-treatment on his body. The experts also examined the records of 3 November 2015, according to which bruises had been present on both of the applicant’s arms and on his right leg. They considered that those bruises could have been inflicted by a blunt object five to ten days before the medical examination on 3 November 2015. Since the records did not indicate the size, form and exact location of the bruises, the experts were unable to determine the exact circumstances and timing of their appearance.

10. On 5 December 2015 the prosecutor decided not to initiate criminal proceedings in respect of the applicant’s alleged ill-treatment by the police officers. He relied on statements by the police officers, who submitted that the applicant had been apprehended in accordance with the law. The prosecutor also noted a statement by R.V. in which he had given a general account of the circumstances of his and the applicant’s arrest. The prosecutor concluded that during his questioning the applicant had confessed to the offences and had never raised any ill-treatment complaints and that, therefore, his allegations of ill-treatment by the police had not been confirmed. The prosecutor mentioned the medical experts’ report but did not address the bruises discovered on the applicant’s body.

11. The applicant lodged an appeal with a court against the prosecutor’s decision. He complained, inter alia, that the police had kept him in the OCU for longer than was lawfully allowed, from 23 October to 3 November 2015, in order to prevent him from meeting with his lawyer and to delay his medical examination until his bruises had disappeared.

12. On 18 January 2016 the Sabail District Court dismissed the applicant’s appeal, stating that the prosecutor had ordered a medical examination of the applicant and had questioned various witnesses. The court considered that those actions had been sufficient to confirm that the applicant had not been ill-treated. On 1 February 2016 the Baku Court of Appeal upheld the first-instance court’s decision, endorsing its reasoning.

3. COmplaints

13. The applicant complained under Article 3 of the Convention that he had been ill-treated by the police officers and that there had not been an effective investigation into the matter.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

14. The Court notes that these complaints 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.

15. 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 in the course of encounters with the police have been summarised in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, ECHR 2015), and Boris Kostadinov v. Bulgaria (no. 61701/11, § 53, 21 January 2016). The general principles with respect to the procedural obligation of the High Contracting Parties under Article 3 of the Convention to investigate acts of ill-treatment by State agents have likewise been set out in detail in Bouyid (cited above, §§ 115-23).

16. The Court notes that the applicant alleged that he had been ill-treated both during his apprehension and during his subsequent detention in the OCU. It appears that the national authorities, and later the Government, denied that any force had ever been applied to the applicant. However, the Court does not need to establish the exact circumstances of the alleged ill‑treatment, for the following reasons.

17. The applicant provided a detailed and consistent account of his alleged ill-treatment, both before the national authorities and before the Court. He also provided evidence – the records of the detention facility of 3 November 2015 – confirming the presence of bruises on his arms and on his right leg when he had been already detained for about ten days. According to the expert report, those bruises could have been inflicted by a blunt object five to ten days earlier (that is, falling within the period of time when the applicant had been arrested and detained). The Government did not contest the authenticity of those records or the experts’ assessment.

18. The above factors are sufficient to give rise to a presumption in favour of the applicant’s account of events and to satisfy the Court that his allegations of having been ill-treated by the law-enforcement authorities were credible.

19. Yet those credible allegations were dismissed by the investigating authorities as unfounded on the sole basis of the statements of the law‑enforcement officers implicated in the incident.

20. Most importantly, the investigating authorities failed to explain the origin of the bruises found on the applicant. In particular, the prosecutor failed to address the records of 3 November 2015 and the subsequent findings of 23 November 2015 by the medical experts. The Court also notes the lack of any explanation in the prosecutor’s decision as to the applicant’s continued detention in the OCU (from 23 October to 3 November 2015), even after the court’s decision of 26 October 2015 to place him in pre-trial detention.

21. In addition, although the allegations of the applicant’s ill-treatment in the OCU became known to the authorities on 26 October 2015, the prosecutor ordered the applicant’s medical examination only on 4 November 2015 and that examination did not take place until 20 November 2015. Such delays undoubtedly undermined the effectiveness of the investigation into the alleged ill-treatment.

22. In the absence of a real attempt to establish the facts of the case, the Court considers that the Government have failed to discharge their burden of proof or to produce evidence capable of casting doubt on the applicant’s account of the events.

23. Having regard to the type of injuries that the applicant suffered, the Court finds that the police subjected him to inhuman and degrading treatment and that the national authorities failed to conduct an effective investigation into the matter. There has accordingly been a violation of Article 3 of the Convention under its substantive and procedural limbs.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. The applicant claimed 200,000 euros (EUR) and EUR 100,000 in respect of pecuniary and non-pecuniary damage respectively; EUR 3,000 and EUR 2,700 in respect of expenses incurred before the domestic courts and before the Court respectively; and EUR 2,000 in respect of costs incurred before the domestic courts and before the Court.

25. The Government submitted that the applicant’s claims should be rejected.

26. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.

27. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

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

(a) that the respondent State is to pay the applicant, 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 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one 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 23 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President