CASE OF EMIN HUSEYNOV v. AZERBAIJAN
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Just satisfaction)
Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1979 and lives in Baku. 6. He is a person with a Category 2 disability. 7. The applicant is an independent journalist and the chairman of the Institute for Reporters’ Freedom and Safety (“IRFS”), a non-governmental organisation specialising in the protection of journalists’ rights. He also worked as a reporter for the news agency Turan Information Agency. 8. On 14 June 2008 a group called the “Che Guevara Fan Club” held a gathering at a private café in Baku to celebrate the eightieth anniversary of the birth of Che Guevara. The café in question was located in the basement of a building in the city centre and there were about twenty-five attendees in the gathering. The applicant, accompanied by two other colleagues (R.A. and M.H.) from the IRFS, attended this gathering. 9. The gathering began at noon and approximately thirty minutes later about thirty police officers entered the café. Some of them were in police uniform and others were in plain clothes. They suspended the gathering and announced that they were going to take the attendees to the police station. 10. The applicant identified himself, informing the police officers that he was a journalist and the chairman of the IRFS. He had with him his identity card and the card confirming that he was the chairman of the IRFS. The applicant also asked the police officers to identify themselves and to release his arrested colleagues. He further informed the Turan Information Agency by telephone about the police intervention. In response, one of the police officers, who was apparently in charge of the intervention, ordered other police officers to take the applicant to the police station. 11. According to the applicant, he was taken to a police car by four police officers, who used force against him. In particular, they punched and kicked him in the stomach. 12. In support of his version of events, the applicant relied on written eyewitness statements from R.A. and M.H., dated respectively 23 June 2008 and 24 June 2008, who confirmed that the applicant had informed the police officers that he was a journalist and the chairman of the IRFS before asking the police officers to release them. A police officer had then instructed other police officers to arrest the applicant and they had used force against him while taking him to a police car. 13. After his arrival at the police station, the applicant had been separated from the others who had been arrested and had been taken to the office of the Deputy Head of Nasimi District Police Station no. 22, A.K. Four police officers had entered the room and had threatened the applicant in the presence of A.K. One of the police officers, O.A., had, according to the applicant, shouted at him and had taken out his gun. Hitting his gun on the table, he had shouted “I can eliminate you”, “I can arrest you”, “I can send you to jail”. Then he had pushed down the applicant’s head by pressing on the back of his neck so that his head hit the table. The applicant had warned the police officer that he was a person with a Category 2 disability and that his health was fragile. At that point O.A. had struck the applicant in the neck with his elbow; as a result, the applicant had lost consciousness. 14. In support of his version of events, the applicant relied on the above-mentioned written eyewitness statements from R.A. and M.H. In particular, R.A. submitted in his witness statement that, when he was in the corridor in the police station, the applicant was taken to the office of the Deputy Head of Nasimi District Police Station no. 22. He had then heard someone who was shouting at the applicant saying “I can eliminate you”, “I can send you to jail”. 15. When the applicant regained consciousness, he had asked the police officers to call an ambulance because he did not feel well. They allegedly refused to do so, but had taken him out of the room. The applicant’s colleagues had seen him in the corridor and had asked other members of the IRFS to call an ambulance. They had also informed the media about the applicant’s ill-treatment by the police. 16. In the meantime, some journalists, human rights defenders and youth movement activists who had been informed of the arrest of the applicant and his colleagues had begun gathering in front of the police station. 17. At around 4 p.m. two police officers accompanied the applicant to the door leading out of the police station, but the applicant had been able to take only a few steps and had then again lost consciousness. In support of his version of events, the applicant relied on written eyewitness statements from I.A. (journalist), R.H. (civil society activist) and M.A. (director of the Turan Information Agency), who were at that time present in front of the police station. The witnesses stated that, when the applicant was taken out of the police station, he was unconscious and was taken by an ambulance, which was called by them, to hospital. 18. At 5.20 p.m. the applicant was admitted to hospital with the diagnosis of traumatic brain injury and contusion of the soft tissues around the nape of his neck. The applicant remained in the intensive care unit of the hospital for four days. He was released from hospital on 25 June 2008. 19. The events of 14 June 2008 attracted significant public and media interest both inside the country and internationally. In particular, a number of human rights organisations, including Human Rights Watch, Amnesty International, expressed concern over the applicant’s arrest and ill-treatment by the police, asking the domestic authorities to conduct an effective investigation into the incident. 20. On 14 June 2008 the police intervened in the gathering in question on the basis of a complaint from people living in the neighbourhood of the café, who complained about noise and the behaviour of those attending. The applicant and other attendees who were unable to produce their identity cards were taken to the police station but were released once their identity had been established. During his stay at the police station the applicant was not ill-treated by the police. 21. A criminal inquiry was launched by Nasimi District Police Station no. 22 in connection with the information about the applicant’s admission to the Clinical Medical Centre with injuries. 22. On 15 June 2008 the applicant was questioned in hospital by an investigator from Nasimi District Police Station no. 22. The applicant described in detail the circumstances of his arrest and detention by the police on 14 June 2008. In particular, he stated that on 14 June 2008 he had attended the gathering commemorating the eightieth anniversary of the birth of Che Guevara, which had been interrupted by a police intervention. When he protested about the arrest of his journalist colleagues on the orders of the police officer who was apparently in charge of the intervention, four police officers forcibly took him to a police car. Following his arrival at Nasimi District Police Station no. 22, he was taken to the room of the Deputy Head of the police station. Other police officers were also in the room and one of them, who was wearing black sunglasses, began insulting him. He then began threatening him, took out his gun and shouted at him. The same police officer also struck him in the neck, as a result of which he lost consciousness. The police officers then took him out of the room. 23. While the criminal inquiry was still pending, on 17 June 2008 the spokesman for the Ministry of Internal Affairs, E.Z., in an interview with the Turan Information Agency, stated as follows concerning the applicant’s arrest and alleged ill-treatment by the police: “The statements made to the media by the chairman of the Institute for Reporters’ Freedom and Safety, Emin Huseynov, alleging that he was subjected to duress by the police are not true. Even the allegations published in the media are contradictory.” He further continued: “On 14 June a group of people held an unauthorised gathering at a café. The police requested the interruption of the unauthorised gathering. Twenty people were taken to Nasimi District Police Station no. 22 in order to establish their identity and to conduct the relevant explanatory interviews (izahat işləri). They were all released following the explanatory interviews. At that time, Emin Huseynov said that he did not feel well. An ambulance was called immediately. It was established during the medical examination that his health problem was related to his previous diseases. It was established during the medical examination that E. Huseynov had lost consciousness because his blood pressure reached 190.” 24. According to the applicant, he was examined by a forensic expert in hospital on 18 June 2008. The forensic report dated 23 June 2008 provides that the examination began on 15 June 2008 and ended on 20 June 2008 without specifying the exact date of the applicant’s examination by the forensic expert in hospital. The forensic report of 23 June 2008 reads: “Questions addressed to the forensic expert: 1. What kind of injuries are there on E. Huseynov’s body? What are their degree of gravity and characteristics? In which order and with which instrument were they inflicted? Could these injuries be sustained as a result of a fall, a beating or were they inflicted by E. Huseynov himself? 2. Does the date of infliction of the injuries on the body of citizen E. Huseynov correspond to the date indicated in the descriptive part of the decision? Information about the case It appears from the decision that a report in connection with the information that citizen E. Huseynov, who resides in ..., has sustained injuries was assigned to me. E. Huseynov, who was questioned during the inquiry, stated that on 14 June 2008 a person that he did not know had struck him in the neck in Nasimi District Police Station no. 22. Citizen E. Huseynov attended the Clinical Medical Centre in connection with his injuries. The examination was carried out in the resuscitation and intensive care unit of the Clinical Medical Centre of the Baku City Main Health Department in the presence of the lawyer Rashid Hajili. According to the person examined, at approximately 12.30 p.m. – 1 p.m. on 14 June 2008 during an event dedicated to the eightieth anniversary of the birth of Che Guevara in café Alaturka, plain clothes persons took him and other attendees to Nasimi District Police Station no. 22. He was struck in his head at that moment and later at the police station. He replies in detail and precisely to the questions about the incident and other questions. 1. The person examined is a man of medium height, normal build and slightly overweight. 2. No injuries or objective signs of injury were noticed on the hairy part of the head, the face and other parts of the body. It appears from medical record no. 5190 of the patient of the Clinical Medical Centre of the Baku City Main Health Department that at 5.20 p.m. on 14 June 2008 E. Huseynov, who is 29 years old, was admitted to the resuscitation and intensive care unit by a team from emergency unit no. 2 with the diagnosis of traumatic brain injury and contusion of the soft tissues around the nape of the neck (qapalı kəllə beyin travması, ənsə nahiyəsinin yumşaq toxumlarının əzilməsi). It was not possible for him to describe his complaints when he was admitted to hospital. According to those who brought him to hospital, the patient sustained the injury as a result of a beating. His general state was serious. The skin and mucous membrane were of ordinary color. The respiration was vesicular. The respiratory rate was 19 breaths per minute, the blood pressure was 190/120 mm Hg, the heart pulse was beating 120 per minute. The abdomen was not hard and there was no pain. Neurological status: his conscious awareness was impaired to the point of deafness. His reaction to bright light was positive, he turned away from it. His pupils and tendon reflexes were at equal distance from each side and they were alive. Meningitis symptoms and pathological reflexes were not observed. In the examination no injury was noticed on the skin. Diagnosis: neurological reaction (nevrotik reaksiya). At 5.25 p.m. on 14 June 2008 the patient, who was in a serious neurological state (nevrotik vəziyyət), was directly admitted from the admission unit to the resuscitation and intensive care unit. His conscious awareness was in soporous state. The tendon and corneal reflexes were alive. The skin and mucous membrane which may be observed by eye were pale. The blood pressure was 190/110 mm Hg, the heart pulse was beating 116 per minute. The respiration was normal and sufficient. The urination was normal. Hb-120 g/l, leucocytes 8,4-10 g/l. On 15 June 2008 there was no pathological change in side projected X-ray examinations of side and neck vertebras of the cranium. At 10 a.m. on 15 June 2008 the comment of the doctor on duty: the patient’s state was stable. He was conscious and replied to questions. His pupils were at equal distance from each side and corneal reflexes were alive. There were no meningitis elements. The skin and observable mucous membrane were pale ... (illegible), the heart pulse was beating 96 per minute, the blood pressure was 130/90 mm Hg ... (illegible), the respiratory rate was 20 breaths per minute ... (illegible). His tongue was wet, the abdomen was not hard, the urination was adequate. It was written in the summary of the cerebral computed tomography opinion dated 17 June 2008 that intraparenchymal traumatic pathological changes were not observed in E. Huseynov. In the computed tomography examination of 17 June 2008 pathological change in the neck area and traumatic change in the neck part of the vertebral column were not revealed. In the ultrasound examination of 17 June 2008 no liquid was revealed in the abdomen and there was no hematoma in the parenchymal organs. It was noted in the log dated 17 June 2008 that an examination was carried out by the doctors, the experts in neurotrauma, A.Y. and Q.I., the head of the resuscitation and intensive care unit, V.R., the experts in resuscitation, C.N. and F.T., and the following were noted: his general state was stable, he complained about headaches. The blood pressure was 120/70 mm Hg, the heart pulse was beating 88 per minute. Neurological status: he was conscious and adequately replied to questions. His pupils and tendon reflexes were at equal distance from each side and they were alive. No change was observed in the cranial-brain nerves. There were no meningitis symptoms. Taking into account the patient’s subjective complaints, it was desirable to subject him to a computed tomography examination. Bearing in mind the patient’s state, it was decided that the further examination and treatment of the patient be continued in the neurotrauma department. It appears from the subsequent log that the patient was examined jointly by the assistant professor M. and the head of the department. It was further indicated that E. Huseynov’s illness was related to extended osteochondrosis of the vertebral column, numerous disc protrusions in the back and neck areas (C 4-5, C 5-6, C 6-7, L 3-4, L 5, S 1), chronic dyscirculatory encephalopathy and vestibulopathy. His treatment in connection with the above-mentioned diseases is ongoing. Clinical diagnosis: neurological reaction, vertebrogenic syndrome, C 4-5, C 5-6, C 6-7 intervertebral disc protrusions, paroxysmal vein distention. The forensic expert: C.A. Conclusion Relying on the forensic examination of E. Huseynov, born in 1979, and the content of the medical documents, I conclude as follows in reply to questions addressed in the decision: 1. No injuries or objective signs of injury (bruise, abrasion, wound, swelling, etc.) were noticed on the body of E. Huseynov. 2. E. Huseynov’s in-patient treatment was related to his previous diseases - extended osteochondrosis of the vertebral column, numerous disc protrusions in the back and neck areas (C 4-5, C 5-6, C 6-7, L 3-4, L 5, S 1), chronic dyscirculatory encephalopathy and vestibulopathy.” 25. The applicant was not provided with a copy of the forensic report. 26. On 25 June 2008 Nasimi District Police Station no. 22 issued an explanation (arayış) concerning the police intervention of 14 June 2008. The relevant part of this document, signed by the Head of Nasimi District Police Station no. 22, M.T., reads: “On the basis of the information that about fifty people had gathered at café “Alaturka” in the basement of building no. 6 at 28 May Street in Baku on 14 June 2008, at around 1 p.m. police officers from the Baku City Police Office took measures in order to identify the persons gathered in this place and to establish the purpose of the gathering, and twenty-two of them were taken to Nasimi District Police Station no. 22. After these individuals had arrived at Police Station no. 22 at 1.55 p.m., they were registered in the “apprehended persons’ registration log” (gətirilmiş şəxslərin qeydiyyat kitabı) and were released at 4.30 p.m. At the police station, their identity was established and statements were taken from nine of them in order to establish the purpose of their gathering in that location. ... At the police station, their identity was established and they were released following a “prophylactic conversation” (profilaktik söhbət). It was also established that Huseynov Emin Rafik oglu, who presented a document stating that he was the chairman of the Institute for Reporters’ Freedom and Safety, was among the persons apprehended...” 27. By a decision of 27 June 2008, the investigator refused to institute criminal proceedings, finding that there was no evidence that the applicant had been ill-treated by the police. The relevant part of the decision reads: “It was established during the examination of patients’ reception log in the Clinical Medical Centre that citizen E. Huseynov was admitted to the hospital with the diagnosis of neurological reaction at 5.20 p.m. on 14 June 2008. This was also noted in extract no. 5196, dated 20 June 2008, from the patient’s in-patient and out-patient medical record provided by the Clinical Medical Centre. In connection with the above-mentioned, the forensic report no. 143/TM of 23 June 2008, ordered on 15 June 2008, which was carried out by ... provides in reply to the questions addressed to the expert, on the basis of E. Huseynov’s forensic examination and the content of the medical documents, that no injuries or objective signs of injury (bruise, abrasion, wound, swelling, etc.) were noticed on the body of E. Huseynov and that E. Huseynov’s in-patient treatment was related to his previous diseases - extended osteochondrosis of the vertebral column, numerous disc protrusions in the back and neck areas (C 4-5, C 5-6, C 6-7, L 3-4, L 5, S 1), chronic dyscirculatory encephalopathy and vestibulopathy. It appears from the evidence collected in connection with the fact that citizen Huseynov Emin Rafik oglu had sustained an injury and from the forensic report dated 23 June 2008 ... that there were no injuries or objective signs of injury on E. Huseynov’s body. As no criminal act has been established in this respect, it is appropriate to refuse to institute criminal proceedings.” 28. The applicant was not informed of the decision of 27 June 2008 concerning the investigator’s refusal to institute criminal proceedings. 29. On 16 March 2009 the applicant lodged a criminal complaint with the Nasimi District Court. Relying on Articles 3, 5, 10 and 11 of the Convention, he complained that he had been ill-treated by the police during his arrest and whilst in police custody, and that the domestic authorities had failed to conduct an effective investigation in this respect. The applicant further complained that he had been unlawfully deprived of his liberty and that the police intervention of 14 June 2008 had been unlawful and had constituted an unjustified interference with his rights to freedom of expression and assembly. The applicant pointed out, in particular, that the investigator had questioned neither the police officers who had been involved in the ill-treatment nor the other witnesses. He also stated that he had not learned about the existence of the investigator’s decision of 27 June 2008 until 3 March 2009 and that he had never been provided with a copy of the forensic report. 30. On 31 March 2009 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 particular complaints. The relevant part of the decision reads: “... It was established during the examination of patients’ reception log in the Clinical Medical Centre that citizen E. Huseynov was admitted to the hospital with the diagnosis of neurological reaction at 5.20 p.m. on 14 June 2008. This was also noted in extract no. 5196, dated 20 June 2008, from the patient’s in-patient and out-patient medical record provided by the Clinical Medical Centre. It appears from the forensic report ... that no injuries or objective signs of injury (bruise, abrasion, wound, swelling, etc.) were noticed on E. Huseynov’s body. It was noted that E. Huseynov’s in-patient treatment was related to the previous diseases ... that he had suffered. Therefore, the court considers that in carrying out a preliminary examination in compliance with Article 207 of the Code of Criminal Procedure for establishing whether there were sufficient basis to institute criminal proceedings the investigator took all the necessary steps and, as it was not established that there had been a criminal element in the examined fact, a justified and lawful decision on refusal to institute criminal proceedings was adopted.” 31. On 6 April 2009 the applicant appealed against this decision, reiterating his previous complaints. He also complained that the investigator had not arranged an identity parade including the police officer O.A. and neither had he questioned the police officers involved in his arrest and detention and, in particular, the Deputy Head of the Nasimi District Police Station no. 22 in whose room and whose presence he had been ill-treated. He had failed to obtain video recordings from security cameras situated in the police station in question. The applicant also disputed the conclusions of the forensic report, pointing out that he had not been provided with a copy of it. 32. On 27 April 2009 the Baku Court of Appeal upheld the first-instance court’s decision. 33. In the meantime, the applicant also lodged a civil action against the Nasimi District Police Office, asking for compensation. Relying on Articles 3, 5, 10 and 11 of the Convention, he complained that he had been ill-treated by the police, that he had been arrested and taken to the police station unlawfully, and that the police intervention in the gathering had constituted an unlawful interference with his rights to freedom of expression and assembly. In support of his claim, the applicant relied on written eyewitness statements from R.A. and M.H., who stated that police officers had used force against the applicant during his arrest. They also stated that when the applicant was in the room of the Deputy Head of Nasimi District Police Station no. 22, they had heard someone shouting at the applicant “I can eliminate you”, “I can send you to jail”. When the applicant had been taken out of the room, he did not feel well. 34. On 25 July 2008 the Nasimi District Court refused to admit his action, finding that it did not comply with the procedural requirements for lodging a complaint. 35. On 2 September 2008 the Baku Court of Appeal upheld the first-instance court’s decision. 36. On 17 November 2008 the Supreme Court quashed the Baku Court of Appeal’s decision and remitted the case to the lower courts for a new examination. 37. On 17 June 2009 the Nasimi District Court, having examined the applicant’s action on the merits, decided to dismiss it. The court found that the applicant had been taken to the police station because he had not had his identity card on him. The court also held that the police intervention had been lawful, since the gathering at the café in the city centre disturbed other people present and consequently the police had intervened. As regards the applicant’s alleged ill-treatment, the court held that it had not been established that the applicant had been ill-treated by the police. The relevant part of the judgment reads: “It was established at the court hearing that an investigator from Nasimi District Police Station no. 22 had examined the fact that E. Huseynov had sustained injuries, that it had been decided to refuse to institute criminal proceedings on the basis of the collected materials because no criminal act had been established, and that this decision had not been challenged. Moreover, it was established at the court hearing on the basis of witness statements that the applicant had been taken to Nasimi District Police Station no. 22 because he had not had his identity card on him, that he had been detained for a certain period of time, and that he had been then released following the establishment of his identity. It was also established at the court that E. Huseynov had been previously sustained brain injury and regularly underwent medical treatment in Azerbaijan and abroad for a long period of time. Unexpected health problems were previously observed in his case and the fact that he had felt unwell after having been brought to the police station was not related to any duress, but to his previous illness. Furthermore, it was not established at the court hearing that the applicant had sustained a bodily injury or subjected to physical violence, beaten or been under duress at the police station.” 38. On 3 August 2009 the applicant appealed against this decision, reiterating his previous complaints. 39. On 14 October 2009 the Baku Court of Appeal dismissed the applicant’s appeal. 40. On 7 May 2010 the Supreme Court upheld the lower courts’ judgments.