FIRST SECTION
CASE OF
NAJAFLI v. AZERBAIJAN
(Application no.
2594/07)
JUDGMENT
STRASBOURG
2 October 2012
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Najafli v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
2594/07) 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 Ramiz Huseyn oglu Najafli
(Ramiz Hüseyn oğlu Nəcəfli - “the applicant”), on
12 December 2006.
The applicant was represented by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”)
were represented by their Agent, Mr Ç. Asgarov.
The applicant alleged, in particular, that he had
been beaten up by the police during the dispersal of a demonstration and that
the domestic authorities had failed to investigate this incident effectively.
4. On 7 January 2008 the application
was communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967 and lives in Baku.
A. The alleged ill-treatment
The applicant was a journalist and the editor-in-chief
of a newspaper named Boz Qurd.
On 9 October 2005 a number of opposition parties
held an unauthorised demonstration in Baku. The applicant, together with five
other journalists, was present at the demonstration to report on the events. The
applicant was not wearing a special blue vest identifying him as a journalist, but
he was wearing a journalist badge on his chest.
During the dispersal of the demonstration by the
police, the applicant and his colleagues were beaten up and received various
injuries. According to the applicant, he told the police officers that he was a
journalist and asked them to stop. The applicant was hit on the head and lost
consciousness following his beating.
The applicant was taken to hospital the same day.
On 26 October 2005 he received a medical certificate with a diagnosis
of closed cranio-cerebral trauma, concussion and soft-tissue damage to the
crown of the head.
On 10 July 2006 the applicant obtained a medical
certificate from Baku City Polyclinic no. 19. That certificate indicated that the
applicant had been registered as a patient diagnosed with closed cranio-cerebral
trauma and concussion, and that his condition required long-term treatment.
B. The criminal proceedings
The six journalists who had been beaten up on 9
October 2005 lodged a joint criminal complaint. On 9 November 2005 the Sabail
District Police Department instituted criminal proceedings under Article 132
(beating) of the Criminal Code. On 22 December 2005 the case was re-qualified
under Article 163 (obstruction of the lawful professional activity of
journalists) of the Criminal Code and transferred to the Sabail District
Prosecutor’s Office.
On 12 January 2006 the applicant was questioned
by the investigator in charge of the case. The applicant stated that he had
been beaten with truncheons by a group of police officers while he was observing
the demonstration as a journalist. The applicant also stated that he did not
know the police officers who had hit him, although he did know the police
officers who were in charge of the police unit. The applicant submitted a photo
of an officer (A.V.) who was the head of the Riot Police Regiment of the Baku
Police Office. The applicant’s version of the events was also confirmed by statements
from two other journalists, E.M. and N.A., who were present at the relevant
time at the place of the incident.
According to the Government, on 28 January 2006 the
investigator ordered a forensic examination of the applicant, but the applicant
did not appear for this examination. No copy of any decision in this respect
was submitted by the Government to the Court. The applicant alleged that he had
not been informed of this decision by the investigator.
By a letter of 2 February 2006, the investigator
in charge of the case requested the Sabail District Police Department to
identify the police officers who had hit the applicant. In reply to the
investigator’s letter, on 25 February 2006 the Head of the Sabail District
Police Department wrote that they had not been able to identify the relevant police
officers, however they would continue to take measures in this respect and
inform the investigator of any result.
On 1 March 2006 the investigator heard A.V., who
denied involvement in the applicant’s beating. A.V. stated that neither he nor
the police officers under his supervision had done anything unlawful to the
applicant in his presence.
On 9 March 2006 the Sabail District Prosecutor’s
Office investigator issued a decision suspending the criminal proceedings until
the perpetrators of the beating had been identified. The investigator relied on
the fact that the police officers allegedly involved in the applicant’s beating
had not been identified. As to A.V.’s alleged involvement, the investigator
relied on A.V.’s statements, noting that the latter had not carried out any
unlawful actions against the applicant.
The applicant was not provided with any
information concerning the criminal investigation until May 2006. On 9 May
2006 the applicant contacted the Sabail District Prosecutor’s Office investigator
and inquired about the state of the proceedings. The investigator informed him
that the criminal investigation had been suspended on 9 March 2006, but did not
provide the applicant with a copy of the decision suspending the investigation.
On 12 May 2006 the applicant lodged a complaint
with the Sabail District Court. He complained that the investigator had failed to
provide him with a copy of the decision suspending the investigation, thus
making it impossible for him to lodge a proper complaint against it. He also
asked the court to quash this decision and remit the case for investigation. He
insisted, in particular, that the group of police officers who had hit him had
been under A.V.’s command, and that the photo of A.V. taken at the time of the
incident had been submitted to the police.
On 26 May 2006 the Sabail District Court
dismissed the applicant’s complaint, finding that the decision suspending the
investigation had been lawful and had been sent to the applicant on 9 March
2006. The decision was silent as to A.V. and his alleged role in the applicant’s
beating. It appears that the court did not hear any witness at the hearing.
On 1 June 2006 the applicant lodged an appeal
reiterating his previous complaints. In particular, he argued that the suspension
of the investigation, for which the reason given was that it was impossible to identify
the policemen who had beaten him, was wrong, and that the investigation
authorities knew who the perpetrators were. In this connection, he noted that
he and other journalists had specifically identified A.V., who was present at
the scene of the incident at the relevant time.
On 13 June 2006 the Court of Appeal dismissed
the applicant’s appeal and upheld the Sabail District Court’s decision of 26
May 2006.
C. The civil proceedings
On 9 November 2006 the applicant lodged a
separate civil action against the Ministry of Internal Affairs, asking for
compensation for pecuniary and non-pecuniary damage caused by his beating on
9 October 2005. He relied on Articles 3, 10 and 11 of the Convention.
On 20 November 2006 the Sabail District Court
refused to admit the action for non-compliance with the formal requirements.
The court held that the applicant had failed, in particular, to provide a
forensic report showing the cause of the injuries and had not supplied a copy
of any document showing that a police officer had been found responsible for the
applicant’s beating. The court also noted that the applicant had failed to identify
actual individuals, rather than the Ministry of Internal Affairs in general, as
defendants.
On 6 December 2006 the applicant appealed
against the first-instance court’s inadmissibility decision, reiterating his
previous complaints.
On 26 January 2007 the Court of Appeal upheld
the Sabail District Court’s decision of 20 November 2006.
On 14 June 2007 the Supreme Court upheld the
decisions of the lower courts.
II. RELEVANT DOMESTIC LAW
A. The Constitution of the Republic of Azerbaijan
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. Law on Police of 28 October 1999
Police officers may use special equipment when, inter
alia, it is considered that a person who is behaving dangerously may cause
damage to himself or people around him (Article 26.II). “Special equipment” is
defined as truncheons, arm-restraining instruments, tear gas, rubber bullets,
water cannons and other means (Articles 1). Physical force, special equipment
or firearms may be used when absolutely necessary in a manner proportionate to
the danger posed. The police authorities must carry out an inquiry into every
incident involving the use of physical force, special equipment or firearms,
and must issue a pertinent opinion on its lawfulness (Article 26.VII).
Unlawful use of force by a police officer entails the officer’s responsibility
under the relevant legislation (Article 26.IX).
Police officers may use physical force, special
equipment or firearms only in the event of absolute necessity or necessary
self-defence, after all other means of coercion have failed to produce the
required result, and depending on the gravity of the offence and the character of
the offender (Article 27.I.1). Anyone injured as a result of the use of
physical force, special equipment or firearms must be provided with the necessary
medical aid (Article 27.I.5). The police officer must report to the relevant
police authority, in writing, on the occasions he or she used physical force,
special equipment or firearms (Article 27.I.7). The relevant prosecutor must
also be informed of any such use of force within twenty-four hours (Article
27.I.8).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained that he had been beaten
up by police and that the domestic authorities had failed to carry out an
effective investigation capable of identifying and punishing the police
officers responsible. 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
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 ill-treatment of the applicant by the
police officer
(a) The parties’ submissions
The Government submitted that they could not
state whether the applicant had been subjected to ill-treatment by the police,
as there was no court decision in this respect. The Government further
submitted that the demonstration of 9 October 2005 had been unauthorised and
that the police were entitled to have recourse to use of force to disperse an
unlawful demonstration. Accordingly, the use of force by the police could not
be considered ill-treatment in the instant case.
The applicant submitted that he had been beaten up
by a group of police officers led by A.V., and that they had used excessive
force against him without any justification. In this connection he relied on the
medical certificate of 26 October 2005, witness statements from two journalists,
and the photo of A.V. taken at the scene of the incident.
(b) The Court’s assessment
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 v.
Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions
1998-VIII).
Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Article 3. Assessment of this
minimum level depends on all the circumstances of the case, such as the
duration of the treatment, its physical or mental effects and, in some cases,
the sex, age and state of health of the victim (see Ireland v. the United
Kingdom, 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI; and Peers
v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has
considered treatment to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and
caused either actual bodily injury or intense physical and mental suffering. It
has deemed treatment to be “degrading” because it was such as to arouse in the
victims feelings of fear, anguish and inferiority capable of humiliating and
debasing them (see Kudła,
cited above, § 92).
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)). The Court is sensitive to the
subsidiary nature of its role and recognises that it must be cautious in taking
on the role of a first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no.
28883/95, 4 April 2000). Nevertheless, where allegations are made
under Article 3 of the Convention, the Court must apply a particularly
thorough scrutiny even if certain domestic proceedings and investigations have
already taken place (see Muradova v. Azerbaijan, no. 22684/05, § 99, 2 April 2009, and Avşar v.
Turkey, §§ 283-84, cited above).
The Court considers that the applicant has been
able to produce sufficiently strong evidence supporting the fact that he was
subjected to the use of force by the police. In particular, the applicant
produced a medical certificate of 26 October 2005, which stated that he had
been admitted to hospital on 9 October 2005 and had been diagnosed with closed
cranio-cerebral trauma, concussion and soft-tissue damage to the crown of
head. He also produced two photos of himself taken immediately after he had
been beaten. The fact that the applicant had been subjected to a beating and had
received serious injuries on 9 October 2005 was in itself never placed in doubt
by the investigating authorities, in particular in the Sabail District
Prosecutor’s Office decision of 9 March 2006 suspending the investigation. As
to the applicant’s claim that the injuries had been inflicted by police, it
should be noted that he received those injuries during a police operation
forcibly dispersing the demonstration of 9 October 2005. He produced statements
from two witnesses supporting his version of the events, and a photo confirming
A.V.’s presence at the scene of the incident. The evidence produced before the
Court is sufficiently strong and consistent to establish at least a presumption
that the applicant was beaten with truncheons by police officers during the
dispersal of the demonstration. In the Court’s opinion, neither the Government
in their submissions, nor the domestic authorities in their decisions, provided
a convincing rebuttal of this presumption.
The Court will consequently examine whether the
use of force against the applicant was excessive. In this respect, the Court
attaches particular importance to the circumstances in which force was used (see
Güzel Şahin and Others v. Turkey, no. 68263/01, § 50,
21 December 2006, and Timtik v. Turkey, no. 12503/06, § 49, 9 November 2010). When
a person is confronted by police or other agents of the State, recourse to
physical force which has not been made strictly necessary by the person’s own
conduct diminishes human dignity and is in principle an infringement of the
right set forth in Article 3 of the Convention (see Kop v. Turkey, no. 12728/05,
§ 27, 20 October 2009, and Timtik,
cited above, § 47).
The Court considers that it has not been shown
that the recourse to physical force against the applicant was made strictly
necessary by his own conduct. It is undisputed that the applicant did not use
violence against the police or pose a threat to them. It has not been shown
that there were any other reasons justifying the use of force. Therefore, the
Court cannot but conclude that the use of force was unnecessary, excessive and
unacceptable.
The Court finds that the injuries sustained by
the applicant establish the existence of serious physical pain and suffering. The
applicant suffered a cranio-cerebral trauma and concussion, which required
long-term medical treatment. The ill-treatment and its consequences must have also
caused the applicant considerable mental suffering, diminishing his human
dignity. In these circumstances, the Court considers that the ill-treatment
complained of was sufficiently serious to attain a minimum level of severity
falling within the scope of Article 3 and to be considered as inhuman and
degrading treatment.
Accordingly, there has been a violation of
Article 3 of the Convention under its substantive limb.
2. Alleged failure to carry out an effective
investigation
(a) The parties’ submissions
The Government submitted that the domestic
authorities conducted an effective investigation of the applicant’s allegations
of ill-treatment. In particular, the Government noted that following the
applicant’s complaint on 9 November 2005 the domestic authorities instituted criminal
proceedings. The investigator heard the applicant, two witnesses and A.V. and
took all appropriate actions to identify those who had beaten the applicant.
Moreover, the investigator ordered a forensic examination for 28 January
2006, at which the applicant failed to appear.
The applicant submitted that the domestic
authorities failed to carry out an effective investigation of his allegations
of ill-treatment. He noted that the domestic authorities had ignored all the
evidence that he had been beaten by the police. He also submitted that he had
not been informed of any decision by the investigator of 28 January 2006 ordering
a forensic examination.
The parties were also in disagreement as to whether
the applicant had been informed in timely fashion of the investigator’s
decision of 9 March 2006 suspending the investigation. The Government
submitted a copy of this decision, signed by the applicant with the remark that
he disagreed with it, and a copy of a letter from the investigator, dated
9 March 2006, notifying of this decision and addressed to the
applicant among others. The applicant maintained that he had not been informed
of that decision until May 2006, and that the documents submitted by the
Government had failed to indicate the date when a copy of the decision had been
made available to the applicant; nor had they shown that he had been informed
of it in timely fashion.
(b) The Court’s assessment
Where an individual raises an arguable claim
that he or she has been seriously ill-treated by 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,
cited above, § 102, and Labita v. Italy [GC], no.
26772/95, § 131, ECHR 2000-IV).
For an investigation required by Articles 2 and
3 of the Convention to be effective, those responsible
for and carrying out the investigation must be independent and impartial,
in law and in practice. This means not only
that there must be no hierarchical or institutional connection with those
implicated in the events, but that there must also be independence in practical
terms (see Boicenco v. Moldova, no. 41088/05, § 66, 11 July 2006; Kolevi
v. Bulgaria, no. 1108/02, § 193, 5 November 2009; and Oleksiy
Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 66, 24 June 2010).
Furthermore, investigations of serious
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 statements 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 those responsible
will risk falling foul of this standard.
The notion of an effective remedy in respect of
allegations of ill-treatment also entails effective access for the
complainant to the investigation procedure (see Assenov
and Others, cited above, § 117). There must be an element of public
scrutiny of the investigation or its results sufficient to secure
accountability in practice, maintain public confidence in the authorities’
adherence to the rule of law, and prevent any appearance of collusion in or
tolerance of unlawful acts (see Kolevi,
cited above, § 194).
The Court observes that following the applicant’s
claim of ill-treatment, on 9 November 2005 the Sabail District Police Department
instituted criminal proceedings under Article 132 (beating) of the Criminal
Code. On 22 December 2005 the case was re-qualified under Article 163
(obstruction of the lawful professional activity of journalists) of the
Criminal Code and transferred to the Sabail District Prosecutor’s Office.
However, the applicant’s complaint was not handled with sufficient diligence,
as no relevant procedural steps were taken until 12 January 2006, the date the applicant
was questioned, more than three months after the incident.
Likewise, even assuming that, as the Government
claimed, the investigator ordered a forensic examination on 28 January 2006,
this was also done belatedly, two months and seventeen days after the beginning
of the criminal inquiry and three months and seventeen days after the incident.
In this connection, the Court also notes that, in any event, the Government did
not submit a copy of the investigator’s decision requiring a forensic
examination, nor did they produce any documentary evidence that the applicant
had actually been informed of the investigator’s decision requiring a forensic
examination, even assuming that there was such a decision.
In this connection, having regard to the material
in its possession and the parties’ submissions, the Court notes that there are
serious doubts that the applicant had been given effective access to the
investigation procedure at all times and that he had been informed of all the
procedural steps in a timely manner.
Having noted the above, the Court will now turn
to what it considers the most problematic aspect of the investigation conducted
in the present case. The Court has repeatedly stressed that the procedural
obligation under Articles 2 and 3 requires an investigation to be independent
and impartial, both in law and in practice (see paragraph 46 above). The Court
notes that the Sabail District Prosecutor’s Office, which was formally an
independent investigating authority and which conducted the investigation in
the present case, requested the Sabail District Police Department to carry out
an inquiry with the aim of identifying those who had allegedly ill-treated the
applicant. As such, the investigating authority delegated a major and essential
part of the investigation - identification of the perpetrators of the alleged
ill-treatment - to the same authority whose agents had allegedly
committed the offence. In this respect, the Court finds it of no real
significance that, while the alleged perpetrators were officers of the Riot
Police Regiment of the Baku Police Department, it was another police department
which was requested to carry out the investigation. What is important is that
the investigation of alleged misconduct potentially engaging the responsibility
of a public authority and its officers was carried out by those agents’
colleagues, employed by the same public authority. In the Court’s view, in such
circumstances an investigation by the police force of an allegation of misconduct
by its own officers could not be independent in the present case (compare, mutatis
mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99,
§ 295-96, ECHR 2007-II; Aktaş v. Turkey, no. 24351/94,
§ 301, ECHR 2003-V (extracts); and McKerr, § 128, cited above).
The Sabail District Police Department’s inquiry
yielded no results and was “unable” to identify the police officers in
question. In this connection the Court notes that the material in the case file
does not contain any evidence such as documents relating to the actual steps
taken by the police investigators.
The Sabail District Prosecutor’s Office investigator
proceeded to rely on the Sabail District Police Department’s “no result” report,
and merely suspended the proceedings without taking any further action. In the Court’s
view, the investigating authority (the Sabail District Prosecutor’s Office) was
fully competent to take, and should have been entirely capable of taking,
independent, tangible and effective investigative measures aimed at identifying
the culprits, such as obtaining a list of the members of the Riot Police
Regiment engaged in the dispersal operation, questioning all the police
officers involved, identifying and questioning other witnesses (those on the demonstration,
bystanders, and so on), holding face-to-face confrontations of witnesses where
necessary, attempting to reconstruct the chronology of the events, and so on. None
of this was done by the investigator independently. Nor did the investigating
authorities, the domestic courts, or the Government provide any plausible explanation
for the failure to do so.
The applicant was also deprived of the
opportunity to effectively seek damages in civil proceedings, as the civil
courts refused to admit his civil claim, citing as a reason his inability to
name specific police officers as defendants. The Court notes that in practice
this requirement amounted to an insurmountable obstacle for the applicant, since
the identification of those police officers was the task of the criminal
investigation, which in the present case was ineffective and lacked independence.
The foregoing considerations are sufficient to
enable the Court to conclude that the investigation of the applicant’s claim of
ill-treatment fell short, for the reasons noted above, of the requirements of
Article 3 of the Convention. There has accordingly been a violation of Article 3
of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
Relying on Articles 10 and 11 of the Convention,
the applicant complained that he had been ill-treated by police with the aim of
preventing him from carrying out his journalistic activity and that his right
to freedom of peaceful assembly had been violated.
The Court notes that, as it appears from the
applicant’s own submissions, he was not a participant of the unauthorised
demonstration, but was present there to report on it in his capacity of a
journalist. In such circumstances, the Court considers that the complaint should
be examined under Article 10 only, as this provision is lex specialis in
so far as the circumstances of the present case are concerned. Article 10 of
the Convention provides:
“1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and regardless
of frontiers. This Article shall not prevent states from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.”
A. Admissibility
The Government submitted that the applicant had
failed to exhaust domestic remedies. In particular, the applicant’s civil
complaint was rejected by the domestic courts for non-compliance with the
procedural requirements relating to lodging a lawsuit. The Government argued
that the applicant could have remedied the procedural shortcomings found by the
domestic courts in his civil complaint and re-submitted it to the court, but he
had failed to do so.
The applicant submitted that his civil claim had
been lodged properly, that he had correctly indicated the Ministry of Internal
Affairs as the defendant, and that he had lodged a correct number of copies of
the claim enclosed together with all the relevant documents in his possession.
The Court reiterates that
the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of
the Convention obliges applicants to use first the remedies that are normally
available and sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must be
sufficiently certain, in practice as well as in theory, failing which they will
lack the requisite accessibility and effectiveness. Article 35 § 1 also
requires that the complaints intended to be brought subsequently before the
Court should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements laid down in domestic
law, but not that recourse should be had to remedies which are inadequate or
ineffective (see Akdivar and Others v. Turkey, 16 September 1996,
§§ 65-67, Reports of Judgments and Decisions
1996-IV).
The Court notes that the applicant lodged a
civil claim complaining, inter alia, of a violation of his rights under
Article 10 of the Convention (see § 22 above and, a contrario, Rizvanov
v. Azerbaijan, no. 31805/06,
§ 73, 17 April 2012). This claim was not admitted for a number of
formal reasons, such as the applicant’s alleged failure to submit a copy of a
forensic report and to identify specific individuals as defendants. However,
the Court reiterates that, in the circumstances of the present case, it was
practically impossible for the applicant to comply with these requirements
owing to the ineffectiveness of the criminal investigation in procuring
forensic evidence and identifying the police officers responsible for the
applicant’s beating. As such, those requirements relied on by the domestic
courts constituted, in essence, an insurmountable obstacle for examination of
the merits of the applicant’s complaint in the civil proceedings. In such
circumstances, the Court considers that the applicant has done all what could
have been expected of him to exhaust domestic remedies.
For these reasons, the Court rejects the
Government’s objection. It further notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The Government submitted that the applicant was
not a participant of the demonstration, but that he was “observing” it. They
noted that, during the demonstration, the applicant had not been wearing a
special blue vest identifying him as a journalist, which would have enabled the
law-enforcement authorities to distinguish him from demonstration
participants. The Government further submitted that the demonstration had been
unlawful and that the police had been entitled to have recourse to appropriate
use of force to disperse the demonstration and detain persons who failed to
comply with lawful police orders. Therefore, the Government noted that “the
applicant’s alleged beating could have taken place in [the] circumstances”
where police officers, in the absence of a blue vest, had difficulty in
distinguishing the applicant from the demonstration participants, against whom
they were entitled to use force. The police had no intention to interfere with
the applicant’s journalistic activity or prevent him from reporting on the
demonstration.
The applicant submitted that, although he had
not been wearing a blue vest, he was wearing a badge on his chest clearly
identifying him as a journalist. He noted that witnesses had confirmed this
fact. Moreover, while he was being beaten by the police, he repeatedly told
them that he was a journalist. Lastly, the applicant argued that, contrary to
the Government’s submissions, the use of force by the police at the
demonstration was in any event unlawful and unjustified.
The Court has repeatedly
stressed the pre-eminent role of the press in a democratic State governed by
the rule of law (see the Castells v. Spain, 23 April 1992, § 43,
Series A no. 236; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63,
Series A no. 239; Goodwin v. the United Kingdom, 27 March 1996, § 39,
Reports 1996-II; Jersild v. Denmark, 23 September 1994, § 31,
Series A no. 298; and Fatullayev v. Azerbaijan, no. 40984/07, § 88, 22 April 2010). It is incumbent on the press to impart information and ideas
on matters of public interest. Not only does it have the task of imparting such
information and ideas: the public also has a right to receive them. This
undoubtedly includes, like in the present case, reporting on opposition
gatherings and demonstrations which is essential for the development of any
democratic society. Were it otherwise, the press would be unable to play its
vital role of "public watchdog" (see, among other authorities, Observer
and Guardian v. the United Kingdom, 26 November 1991, § 59,
Series A no. 216, and The Sunday Times v. the United Kingdom (no. 2), 26
November 1991, § 50, Series A no. 217).
. It
is undisputed that the applicant was present at the place of demonstration to
report on the event; that is, he was doing his journalistic work. As
established above, the applicant was subjected to use of force in breach of
Article 3 of the Convention, despite not having conducted himself in a manner
that would make use of force necessary. Although the applicant was not wearing
a special vest, he was wearing a journalist’s badge on his chest and also
specifically told the police officers that he was a journalist. Thus, the Court
cannot accept the Government’s argument that police officers had been unable to
determine that the applicant was a journalist.
. The
Court notes that public measures preventing journalists from doing their work
may raise issues under Article 10 (see, mutatis mutandis, Gsell
v. Switzerland, no. 12675/05, § 49 et
seq., 8 October 2009). Turning to the present case,
the Court notes that it cannot be disputed that the physical ill-treatment by
State agents of journalists while the latter are performing their professional
duties seriously hampers their exercise of the right to receive and impart
information. In this regard the Court notes the Government’s argument that
there was no actual intention to interfere with the applicant’s journalistic
activity as such. However, irrespective of whether there was such intention in
the present case, what matters is that the journalist was subjected to the
unnecessary and excessive use of force, amounting to ill-treatment under
Article 3 of the Convention, despite having made clear efforts to identify
himself as a journalist who was simply doing his work and observing the event.
Accordingly, the Court considers that there has been an interference with the
applicant’s rights under Article 10 of the Convention.
. Furthermore,
the Court finds that this interference was not justified under paragraph 2 of
Article 10. It was not shown convincingly by the Government that it was either
lawful or pursued any legitimate aim. In any event, it is clear that such
interference as in the present case could not be considered as “necessary in a
democratic society”.
. There
has accordingly been a violation of Article 10 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the domestic
courts’ refusal to admit his civil action had been wrongly substantiated and
breached his right of access to court.
The relevant part of Article 6 of the Convention
reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Having regard to the finding of a violation of
the procedural aspect of Article 3 (and, in particular, the findings in
paragraph 55 above), and noting that the present complaint concerns essentially
the same matters, the Court considers that it is not
necessary to examine whether this case raises an issue Article 6 of the
Convention. Therefore, the Court rejects this part of the application pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
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
1. Pecuniary damage
The applicant claimed 800 euros (EUR) in compensation
for pecuniary damage for the cost of his medical treatment, and EUR 16,500 in compensation for pecuniary damage for lost earnings. He
also claimed EUR 10,000 compensation for pecuniary damage for his treatment
abroad.
The Government contested the claim, noting that
the applicant had failed to substantiate his allegation.
The Court points out that under Rule 60 of the
Rules of the Court any claim for just satisfaction must be itemised and
submitted in writing, together with the relevant supporting documents or receipts,
failing which the Court may reject the claim in whole or in part.
In the present case, even assuming that there is
a causal link between the damage claimed and the violations found, the Court
observes that the applicant did not submit any documentary evidence supporting
this claim. In particular, he did not submit any receipts, prescriptions or any
other documents certifying his expenses for medical treatment, or an employment contract or other documents certifying
his income.
For the above reasons, the Court rejects the
applicant’s claims in respect of pecuniary damage.
2. Non-pecuniary damage
The applicant claimed EUR 10,000 in compensation
for non-pecuniary damage.
The Government contested the amount claimed as
unsubstantiated and excessive.
The Court considers that the applicant has
suffered non-pecuniary damage which cannot be compensated for solely by the
finding of violations and that compensation should thus be awarded. 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
The applicant claimed EUR 1,000 for costs and
expenses incurred before the domestic courts in the criminal proceedings and
EUR 1,600 for the civil proceedings. He also claimed EUR 2,700 for costs
and expenses incurred before the Court. In support of his claim, he submitted several contracts for legal services rendered
in the proceedings before the domestic courts and the Court. According to these
contracts, the amounts due were to be paid in the event that the Court found a
violation of the applicant’s rights. The applicant also claimed EUR 1,750 for
translation expenses and EUR 200 for postal expenses.
The Government considered that the claim was
unsubstantiated and excessive. In particular, the Government submitted that the
applicant had failed to produce all the necessary documents in support of his
claims and that the costs and expenses had not
actually been incurred, because the amount claimed had not yet been paid by the
applicant.
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. Having regard to the documents in its possession and
the above criteria, the Court considers it reasonable to award the sum of EUR
3,000 covering costs under all heads.
C. Default interest
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 complaints under Articles 3
and 10 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention as regards the ill-treatment by the police;
3. Holds that there has been a violation of
Article 3 of the Convention as regards the lack of effective investigation of
the applicant’s allegations of ill-treatment;
4. Holds that there has been a violation of
Article 10 of the Convention;
5. 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 3,000 (three 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;
6. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
