CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mai 2017

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A.     Yagublu v. Azerbaijan, no. 67374/11 1.     The applicant’s administrative arrest The applicant was the Deputy Chairman of the Musavat Party. He also worked as a columnist for the Yeni Musavat newspaper. On 2 April 2011 he attended an opposition demonstration held in Baku. The demonstration was intended to be peaceful and was conducted in a peaceful manner. The participants were demanding free and fair elections, democratic reforms, freedom of assembly, and the release of people arrested during some previous demonstrations. At around 3 p.m. the applicant was arrested by police officers during the demonstration and taken to the Nasimi District Police Office, together with other participants in the demonstration, including M.S. and N.S. 2.     The applicant’s alleged ill-treatment On 2 April 2011 in the exercise area of the temporary detention facility of the Nasimi District Police Office, the applicant, M.H. and N.S. were beaten by S.N., who was the Deputy Head of the Nasimi District Police Office, another police officer J.A., and a plain-clothes person who was unknown to the applicant. S.N. swore at the applicant, kicked him in his abdominal area, and punched him. After S.N. had kicked him in his testicles, the applicant lost consciousness due to the severe pain and, despite his requests, was not provided with the requisite medical assistance. 3.     Court proceedings against the applicant At around midnight on the day of his arrest the applicant was taken to the Nasimi District Court. He stated before the court that he had exercised his right to freedom of assembly, and that he was not guilty of disobeying the lawful order of a police officer. He did not have any lawyer at the court hearing, and insisted on being allowed to have a lawyer of his own choice and inviting witnesses to testify on his behalf. However, the judge disregarded his requests on the grounds that it was late at night. The hearing was brief. The court found that the applicant had failed to stop participating in the unauthorised demonstration. The court convicted him under Article 310.1 of the Code of Administrative Offences (“the CAO”) and sentenced him to eight days’ administrative detention. It relied on the testimonies of two police officers, A.E. and N.S., who testified that the applicant had been attempting to hold an unauthorised demonstration and had continued his actions, disobeying their request for him to stop participating in the unlawful demonstration. During the court hearing, the applicant complained that on 2 April 2011 he had been beaten at the police station, and asked the court to facilitate the provision of the requisite medical assistance, but his request was ignored. The court decision was silent about his complaint of ill-treatment. On 4 April 2011 the applicant lodged an appeal before the Baku Court of Appeal, arguing that his arrest and conviction had been unlawful, that the hearing before the first-instance court had not been fair – in particular, he had not had a defence lawyer, had not been allowed to have a lawyer of his own choice, and his requests to call witnesses to testify on his behalf had been dismissed – and that he had been discriminated against on the basis of his political views. He also complained regarding ill-treatment, and stated that he still felt unwell and had not received the requisite medical assistance. On 8 April 2011 the Baku Court of Appeal dismissed his appeal. It also held that the applicant had had a State-appointed lawyer at the first-instance court, and that his ill-treatment claims had not been proved. 4.     Remedies used by the applicant in relation to the alleged ill ‑ treatment On 6 April 2011 the applicant lodged a complaint with the Nasimi District Court under the procedure for judicial review of prosecuting authorities’ actions or decisions. Relying on Articles 3, 5, 6, 11, 13 and 14 of the Convention, he complained regarding his ill-treatment on 2   April   2011, the unfairness of his conviction, the violation of his freedom of assembly, and the discrimination on the basis of his political views. By a decision of 12 April 2011 the Nasimi District Court refused to admit the case, and sent the complaint to the Nasimi district prosecutor’s office, claiming that the latter had the authority to consider it. On an unspecified date in April 2011 the applicant applied to the Baku prosecutor’s office, requesting that a criminal investigation into the matter be instituted. By a decision of 28 April 2011 the Nasimi district prosecutor’s office refused to open a criminal case, on the grounds that the beating of the applicant by S.N. had not been proved. It relied on the findings of the investigation conducted by the Nasimi district prosecutor’s office into a similar complaint of ill-treatment from M.H., who had been detained with the applicant on 2 April 2011. Within the framework of that investigation, the applicant, when questioned as a witness, and M.H. and N.S., who had been detained with him, gave similar testimonies about being ill-treated by S.N. and other officers while in police custody. According to a forensic report dated 15 April 2011, there was an abrasion on the applicant’s left calf caused by blunt object, which could have been inflicted on 2 April 2011. The Deputy Head of the Nasimi District Police Office, S.N., denied any involvement in the applicant’s case, stating that he had not been at the police office at the material time. Police officers V.M., M.R., E.S. and A.E. stated that the applicant had not been detained in the temporary detention facility and had not been beaten. Police officer E.S. added that the injury on the applicant’s leg might have been caused during his arrest, when he had resisted entering the police car. In an appeal of 31 May 2011, filed with the Nasimi District Court against the decision to refuse to open a criminal case, the applicant reiterated his previous complaints, pointing out that: his forensic examination had taken place so long after the event that most of the injuries on his body had disappeared; the prosecutor’s office had not identified the precise circumstances leading to his injury, in particular, the place and time that his injuries were inflicted; he had not been called to testify, but his witness statement in M.H.’s case had been used instead, and no separate investigation into his complaint had been conducted. On 21 June 2011 the Nasimi District Court held that the Nasimi district prosecutor office’s decision had been lawful. It stated that the applicant’s complaint had been added to the investigation into M.H.’s similar complaint stemming from the same facts, and that the relevant investigative actions had also been carried out in respect of the applicant. By a judgment of 14 July 2011 the Baku Court of Appeal dismissed the applicant’s appeal of 30 June 2011, and upheld the first-instance court’s decision. B.     Ahadov v. Azerbaijan, no. 612/12 The applicant’s arrest and alleged ill-treatment The applicant is a member of the Popular Front Party of Azerbaijan, one of the opposition parties in Azerbaijan. On 2 April 2011 he attended an opposition demonstration held in Baku. At around 2 p.m., while he was chanting slogans about free elections as part of the demonstration, four police officers approached him and twisted his arms behind his back. While he was forcibly taken to a bus, the Deputy Head of the Nasimi District Police Office, S.N., who knew him from previous demonstrations, insulted him and twisted his arm even more, saying to the police officers, “You should not twist [the arms], but break them, like this”, in response to which the applicant shouted because of the pain. Shortly thereafter, under S.N.’s orders, the police officers beat him with truncheons. The applicant lost consciousness and lay on the ground for several minutes. After he regained consciousness, the officers dragged him to a police car and took him to the Sabail District Police Office. While in police custody the applicant requested a medical examination and assistance, but his request was refused. He was reprimanded for participation in a public assembly under Article   298 (Violation of the rules on holding public assemblies) of the Code of Administrative Offences, and released at around 5 p.m. that day. On 2 April 2011 the applicant complained to the Sabail district prosecutor’s office that he had been beaten and insulted during his arrest as a result of being an opposition member. He requested that criminal proceedings be instituted. A forensic report dated 4 April 2011 states that the applicant had a bruise on his left arm which could have been caused on 2 April 2011. The applicant sought medical assistance at the Clinic Medical Centre, which provided him with outpatient treatment. According to his medical records of 5 April 2011, issued by the Clinic Medical Centre, the applicant had contusion of the soft tissues of his left upper limb and thorax, thoracic bruising , and haemarthrosis of his right elbow joint. He was prescribed outpatient treatment, including a sling for his left upper limb and medicine. The records also stated that the applicant was experiencing chest pain while breathing and had a haematoma and bruising on his upper arm, and that his upper limb’s functions were limited. The applicant submitted the medical records, as well as photos of him taken during the demonstration which were published in the 24 ‑ 25   April 2011 issue of the Azadlig newspaper, and in which S.N. and other police officers could be seen twisting his arm. The Sabail district prosecutor’s office questioned four police officers who had taken part in the applicant’s arrest. S.N. denied the ill-treatment allegations, stating that he had not twisted the applicant’s arms. Police officers A.R., V.S. and A.A. claimed that they had not used physical force against the applicant during his arrest, and that S.N. had not twisted his arms. A.A. also mentioned that the injury could have been inflicted when the applicant had resisted the police by pushing them and hitting the police cars with his hands. By a decision of 5 May 2011 the Sabail district prosecutor’s office refused to open a criminal case, finding that there was no evidence that the applicant had been beaten by police during his arrest. It relied mainly on the statements of the police officers, and held that the bruise on the applicant’s arm mentioned in the forensic report had been caused when he had demonstrated resistance to the police. On 3 June 2016 the applicant lodged a criminal complaint with the Sabail District Court against the refusal to open a criminal case. He complained that the district prosecutor’s office had failed to conduct an effective investigation into his ill-treatment complaints. He also pointed out that the prosecutor’s office had relied on the testimonies of witnesses who had denied that S.N. had twisted his arms, while the photos he had submitted proved the contrary, and that the refusal to open a criminal case was silent as to his other injuries confirmed by the medical records of 5   April 2011. On 13 June 2011 the Nasimi District Court dismissed the applicant’s complaint, finding the investigator’s decision lawful. The court’s decision was silent as to the applicant’s specific complaints. In an appeal of 16 June 2011, the applicant reiterated his previous complaints. On 24 June 2011 the Baku Court of Appeal upheld the first-instance court’s decision as lawful. C.     Mahaddinova and Others v. Azerbaijan, no. 34528/13 1.     The alleged ill-treatment of the first and second applicants All applicants are members and activists of the Popular Front Party of Azerbaijan. They attended opposition demonstrations of 14 May 2012 and 21   May 2012 held in Baku by the Ictimai Palata group. In the demonstration of 14   May 2012 the participants were demanding action against corruption and the violation of human rights, and on 21 May 2012 they were demanding the release of political prisoners in Azerbaijan. The police dispersed both demonstrations as ones which were unauthorised. (a)     The first applicant, Ms Zarifa Mahaddinova Shortly after the operation to disperse the demonstration of 14 May 2012 had started, around six or seven police officers pushed the first applicant so that she almost fell off a ladder, but the fourth applicant held onto her. A police officer whom she did not know slapped her neck. She was suddenly unable to control her physical movements and her vision darkened temporarily. For a long time she felt pain in her right shoulder, right ear and eyes. She was insulted by the police. Later, she was forcibly taken by the police to a bus, together with other six or seven other female participants in the demonstration, and was released after being driven around in the city. During the 21 May 2012 demonstration several police officers pushed the first applicant from all sides. They insulted her by swearing at her. They applied physical force and she sustained injuries. She had bruises for several months. Police dragged her to a car by both hands. She was in pain and shouted. The second applicant tried to help her, and consequently the officers released her and started to drag the second applicant instead. (b)     The second applicant, Ms Natavan Salimzade On 14 May 2012 the police pushed the second applicant, and she fell to the ground and suffered severe pain. She was insulted by being sworn at and the police officers also intentionally touched some parts of her body (pressing her breasts) to humiliate her as a woman. She suffered injuries. On 21 May 2012 the police officers pushed her towards a ladder and she fell to the ground and sustained a contusion. The officers dragged her through the street by her hands. She lost consciousness and was in hospital for two hours that day. 2.     The dispersal of the assembly (a) The third applicant, Ms Kamala Khalilova In the demonstration of 14 May 2012 a police officer hit her knee hard and swore at her. Later, she was forcibly put into a bus by the police, which was being used to remove people from the demonstration venue. At the demonstration of 21 May 2012 the same officer insulted her again, and at the Sabail District Police Office, where she was taken by the police, the police officer swore at her. (b) The fourth applicant, Ms Mardana Huseynova During the 14 May 2012 demonstration a police officer hit her from behind and pushed her aside. As she tried to help the second applicant, police grabbed her and pushed her towards a car. When she tried to escape from him, a police officer pressed on her foot to stop her. During the 21 May 2012 demonstration the fourth applicant was taken to the Sabail District Police Office. 3.     Remedies used by the applicants in respect of the alleged ill ‑ treatment and the dispersal of the assembly On an unspecified date the applicants complained to the Sabail district prosecutor’s office, requesting that a criminal investigation be instituted. The Sabail district prosecutor’s office questioned police officers from the Sabail District Police Office: police officers A.R., M.B., and A.J. in respect of all complaints, and police officers S.G. and E.M. in respect of the fourth applicant’s complaint. All officers stated that they had not applied physical force to any of the participants at the demonstration, including the applicants. They had not injured them, and had just warned the participants to disperse. The applicants were questioned, and they reiterated their complaints regarding ill-treatment by the police. Apart from the third applicant, they all submitted video footage and photos taken during demonstrations. A forensic expert who examined the first and second applicants on unspecified dates did not find traces of injuries on them. The third and fourth applicants refused to be examined by the forensic expert, claiming that the signs of ill-treatment had disappeared with the passage of time. By decisions of 1 June 2012 in respect of the first and second applicants, a decision of 6 July 2012 in respect of the third applicant, and a decision of 30   June 2012 in respect of the fourth applicant, the Sabail district prosecutor’s office refused to open criminal cases. The decisions of the district prosecutor’s office addressed the applicants’ complaints with regard to the demonstration of 14 May 2012, and relied on the police officers’ statements, as well as the lack of proof that the applicants had been injured. On an unspecified date the applicants lodged a criminal complaint with the Sabail District Court against the refusals to open a criminal case. They complained that the investigation into their complaints had not been effective: the security camera recordings relating to the demonstrations in question had not been reviewed; the witnesses who had observed the police using force against them had not been called or examined; the investigation had not had regard to the video footage and photos of the demonstrations they had submitted; the police officers questioned by the district prosecutor’s office had been selected randomly, without regard to the officers’ personal involvement in the applicants’ case; and the district prosecutor’s office had not conducted any investigation into the demonstration of 21 May 2012. On 23 October 2012 the Sabail District Court dismissed the applicants’ complaint, finding the refusals to open a criminal case lawful. In an appeal of 5 November 2012 the applicants reiterated their previous complaints. On 16 November 2012 the Baku Court of Appeal upheld the first ‑ instance court’s decision, dismissing the applicants’ appeal. COMPLAINTS The applicants in Yagublu v. Azerbaijan (no. 67374/11) and Ahadov v.   Azerbaijan (no. 612/12), as well as the first and second applicants in Mahaddinova and Others v. Azerbaijan (no. 34528/13), complain under Article 3 of the Convention of ill-treatment during the dispersal of the assemblies, and the absence of an effective investigation in that respect. The applicant in Yagublu v. Azerbaijan (no. 67374/11) complains under Article 5 of the Convention of the unlawfulness of his deprivation of liberty, and under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention of a violation of his right to a fair trial. The applicants in Yagublu v. Azerbaijan (no. 67374/11) and Mahaddinova and Others v. Azerbaijan (no. 34528/13) complain under Article 11 of the Convention of a violation of their right to freedom of peaceful assembly. COMMON QUESTIONS 1.     Have the applicants in Yagublu v. Azerbaijan (no. 67374/11) and Ahadov v. Azerbaijan (no. 612/12), as well as the first and second applicants in Mahaddinova and Others v. Azerbaijan (no.   34528/13), been subjected to ill-treatment, in breach of Article 3 of the Convention? 2.     Having regard to the procedural protection from inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no.   26772/95, ECHR 2000-IV), was the investigation into those cases by the domestic authorities in breach of Article 3 of the Convention?   The Government are requested to submit copies of all documents concerning the applicants’ cases. CASE-SPECIFIC QUESTIONS A.     Yagublu v. Azerbaijan (no. 67374/11) 1.     Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?   2.     Did the applicant have a fair hearing in determining the charge against him, in accordance with Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention? In particular, was the principle of equality of arms respected as regards the provision of sufficient time and facilities for the applicant to prepare his defence, the opportunity for him to defend himself through effective legal assistance, and the questioning of witnesses?   3.     Has there been a violation of the applicant ’ s right to freedom of peaceful assembly under Article 11 of the Convention? B.     Mahaddinova and Others v. Azerbaijan (no. 34528/13) 1.     Did the applicants exhaust the domestic remedies with regard to their complaints under Article 11 of the Convention?   2.     Has there been a violation of the applicants ’ right to freedom of peaceful assembly under Article 11 of the Convention?   The Government are requested to submit copies of all documents concerning the applicants’ cases. APPENDIX No. Application no. Lodged on Applicant name date of birth place of residence Represented by   67374/11 12/09/2011 Tofig YAGUBLU 06/02/1961 Baku   Akif ALIZADE   612/12 14/12/2011 Ramiz AHADOV 22/07/1954 Baku   Intigam ALIYEV   34528/13 13/05/2013 Zarifa MAHADDINOVA 21/10/1957 Baku Natavan SALIMZADE 12/02/1970 Baku   Kamala KHALILOVA 15/03/1974 Baku   Mardana HUSEYNOVA 27/05/1978 Baku     Intigam ALIYEV