CASE OF MEHDIYEV v. AZERBAIJAN
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
5. The applicant was born in 1961 and lived in Nakhchivan at the time of the events. 6. The applicant was an independent journalist and worked as a reporter of the Yeni Musavat newspaper in the Nakhchivan Autonomous Republic (“the NAR”). 7. The applicant was the author of two critical articles about the economic and political situation in the NAR published in the Yeni Musavat newspaper in August and September 2007. The articles, entitled “Food has become considerably more expensive in Nakhchivan (owing to Vasif Talibov’s “care”)” (“Naxçıvanda ərzaq xeyli bahalaşıb (Vasif Talıbovun “qayğısı” sayəsində)”) and “Vasif Talibov rebuilds his native village” (“Vasif Talıbov doğulduğu kəndi söküb yenidən tikdirir”), related in particular to the activities of the Speaker of the Parliament of the NAR, Vasif Talibov, who is also “the supreme official of the NAR” (“Naxçıvan Muxtar Respublikasının ali vəzifəli şəxsi”) under its Constitution of 29 December 1998. 8. On 17 September 2007 the applicant also met a reporter from Radio Liberty and helped him to prepare a report about the economic and political situation in Nakhchivan. 9. At around 2 p.m. on 22 September 2007, when the applicant was in a café in the village of Jalilkand in the Sharur District, the head (M.M.) of the district department of the MNS approached him. M.M. accused the applicant of publishing defamatory articles about the NAR, and ordered four men in uniform to arrest him. 10. The applicant was taken to the premises of the MNS in Sharur by car. His mobile phone was taken away while he was being transported there. When they arrived at the MNS building M.M. told him to stop spreading misinformation about the NAR. He further ordered agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room. 11. Five men then began to torture the applicant. They hit him repeatedly with truncheons, kicked him and punched him in the head. Approximately an hour later, M.M. returned and asked the applicant whether he had “grown wise”. M.M. further ordered five men to make the applicant “understand his mistakes”. The applicant was then subjected to further ill-treatment. 12. The applicant was subsequently taken to the office of M.M. who demanded that he become a member of the ruling political party (YAP - Yeni Azərbaycan Partiyası) and to write defamatory articles about opposition leaders. The applicant refused to do so. 13. The applicant was released at 2 a.m. on 23 September 2007; his mobile phone was returned to him. Before his release, M.M. told him that if he did not “grow wise”, he would be brought back to the MNS. 14. Following his release, the applicant immediately informed the Yeni Musavat newspaper of his arrest. According to the applicant, his relatives also took photographs of the injuries on his body. However, he was unable to see a doctor immediately, because it was night. 15. The Government submitted that on 22 September 2007 the applicant was not arrested, detained or ill-treated, by agents of the MNS. 16. In the morning of 23 September 2007, while the applicant was about to go and see a doctor, he was arrested by the police and taken to the Sharur District Police Office. 17. The head of the Sharur District Police Office, M.H., shouted at the applicant, demanding to know why he had informed the press of his arrest. 18. On the same day the applicant was taken to the Sharur District Court, which sentenced him to fifteen days’ administrative detention for obstructing the police. The applicant was not represented by a lawyer at the hearing. Two police officers testified against him. The applicant was not provided with a copy of the court decision. 19. At the request of the applicant, after the court hearing he was taken to the Sharur Central Hospital, where he was examined by a doctor who observed numerous bruises on his body. However, he was not provided with any medical record. 20. At around 2.30 p.m. on 23 September 2007 the applicant was approached by the police in the centre of the Jalilkand village, because he was using loud and abusive language in public. As the applicant did not comply with the police request to stop his unlawful action, an administrative offence report was drawn up and he was taken to the police station. It appears from the report that the applicant refused to sign it. The relevant part of the report of 23 September 2007 provides as follows: “On 23 September 2007 H. Mehdiyev did not comply with the lawful request of the police, and continued to shout and use insulting language in the centre of the Jalilkand village.” 21. On the same day the Sharur District Court found the applicant guilty under Article 310.1 (obstructing the police) of the Code of Administrative Offences, and sentenced him to fifteen days’ administrative detention. It was specified in the decision that it could be appealed against within ten days of its receipt. The relevant part of the decision of 23 September 2007 provides as follows: “Assessing the evidence at its disposal, the court concludes that the fact that Mehdiyev Hakimeldostu Bayram oglu [the applicant] committed the above-mentioned administrative offence is proved by his confession and the statements of witnesses heard in connection with the case. The court qualifies the administrative offence committed by Mehdiyev Hakimeldostu Bayram oglu under Article 310.1 of the Code of Administrative Offences. Therefore, he must be found guilty under this article and must be punished.” 22. The Government produced a receipt confirming that the applicant had received a copy of the court decision at 5.30 p.m. on 23 September 2007. The receipt was dated 23 September 2007 and signed by the applicant. 23. At around 7 p.m. on 23 September 2007 the applicant was taken to detention facility no. 8 to serve his sentence. 24. During his detention the applicant was deprived of food and water. He was not provided with any bedding and was forced to spend nights outside on a concrete walkway. The applicants’ hands were handcuffed at all times and due to the detention facility’s proximity to the River Aras, he suffered badly from mosquito bites. 25. At midnight on 25 September 2007, the Minister of National Security of the NAR arrived at the detention facility with two other men. They appeared to be drunk. The Minister insulted the applicant and then all of them beat him. 26. The Government submitted that there was no detention facility no. 8 in the NAR and the applicant was detained in the temporary detention facility of the Ministry of Internal Affairs of the NAR. 27. The applicant was detained alone in a cell which was 2.8 metres high, 5.2 m long, and 2.2 m wide. The cell was adequately lit and ventilated. The applicant was provided with a separate bed and bedding, as well as with other necessities. In support of their account of the conditions, the Government produced photographs of the detention facility in question and the cell in which the applicant was held. 28. The Government also produced a medical record dated 16 December 2013 from the doctor on duty at the detention facility at the time. According to the medical record, at 7.45 p.m. on 23 September 2007 the applicant was examined by the doctor and “no pathology was revealed” (heç bir patalogiya aşkar edilmədi). The medical record of 16 December 2013 provides as follows: “Examination by the doctor on duty: At 7.45 p.m. on 23 September 2007 Mehdiyev Hakimeldostu Bayram oglu accompanied by two police officers came to the admission department for examination. During the examination of the citizen, no pathology was revealed. The blood pressure was 120/85 mm Hg. Practically healthy (praktiki sağlam). The doctor on duty: I.M.” 29. Following the applicant’s administrative detention, various Azerbaijani and international human rights organisations asked the Azerbaijani authorities for the applicant’s release. In particular, on 26 September 2007 Reporters Without Borders submitted a request to the Azerbaijani authorities to stop the applicant’s harassment because of his journalistic activities and to order his release. In respect of the applicant’s alleged ill-treatment by agents of the MNS on 22 September 2007, the request reads: “The day before his arrest, Mehdiyev was forced into a car by national security ministry agents and held all day in a ministry building where, according to Reporters Without Borders’ sources, he was beaten because of his reports about gas and electricity problems in the region.” On 27 September 2007 the Committee to Protect Journalists also called upon the Azerbaijani authorities to stop the applicant’s harassment because of his journalistic activities and to carry out a thorough investigation in this respect. The applicant’s alleged illtreatment by agents of the MNS on 22 September 2007 and his administrative detention were also covered by the Azerbaijani media. 30. On 27 September 2007 the applicant was released from administrative detention. No official reason was given for his early release from detention. 31. According to the applicant, after his release from detention, he was treated in the Nakhchivan Republic Hospital, however all the medical institutions refused to give him an official medical certificate. The doctor who examined the applicant told him that his seventh rib was broken. In support of his claim, the applicant relied on a medical record dated 1 October 2007 in which the doctor indicated that an X-ray examination of the applicant’s seventh rib had been carried out, without providing further information. Although the name of the doctor appeared on the medical record, it was not signed or stamped and there was no information about the medical establishment in which the examination was carried out. The medical record of 1 October 2007 provides as follows: “Mehdiyev Hakimeldostu Bayram oglu; born in 1961 in Jalilkand; X-ray examination of the ribcage and the seventh left side rib in the back armpit (sol yeddinci qabırğasının arxa qoltuqaltı).” 32. Relying on Articles 3, 5 and 10 of the Convention, on 3 October 2007 the applicant lodged a criminal complaint with the Sharur District Prosecutor’s Office asking for the institution of a criminal investigation. He submitted the same factual information as what he submitted to the Court (see paragraphs 9-14 above) i.e. that at around 2 p.m. on 22 September 2007 he had been arrested, at the request of the head (M.M.) of the district department of the MNS, in a café in the village of Jalilkand in the Sharur District by agents of the MNS, and had been taken to the premises of the MNS in Sharur. Once there M.M. demanded that he stop spreading misinformation about the NAR. He further ordered the agents of the MNS to explain to the applicant “the meaning of his activity as a reporter” and left the room. Five men then began to torture him. They hit him repeatedly with truncheons, kicked him and punched him in the head. Approximately an hour later, M.M. returned and asked him whether he had “grown wise”. M.M. further ordered the five men to make him “understand his mistakes”. He was then subjected to further ill-treatment and was only released at around 2 a.m. on 23 September 2007. Before his release, M.M. told him that, if he did not “grow wise”, he would be brought back to the MNS. 33. The applicant sent his complaint by recorded delivery and it appears from the postal document submitted to the Court that the Sharur District Prosecutor’s Office received it on 4 October 2007. 34. The applicant did not receive any reply to his complaint. 35. On 19 October 2007 the applicant lodged the same complaint with the Prosecutor General’s Office, the Ministry of Internal Affairs and the Ombudsman. The applicant produced postal documents confirming that the letters had been sent to the above-mentioned authorities. 36. By a letter of 25 October 2007 the Prosecutor General’s Office informed the applicant that it had forwarded his complaint to the Prosecutor of the NAR for examination. 37. On 7 November 2007 the applicant re-submitted the same complaint to the Sharur District Prosecutor’s Office by recorded delivery. The applicant produced a postal document confirming the receipt of his letter by the Sharur District Prosecutor’s Office. 38. By a letter of 23 November 2007, the Ministry of Internal Affairs informed the applicant that it had forwarded his complaint to the Minister of Internal Affairs of the NAR for examination. 39. No action was taken in respect of the applicant’s above-mentioned complaints. 40. On 9 February 2008 the applicant lodged an action with the Sharur District Court in accordance with the procedure established by Articles 449451 of the Code of Criminal Procedure concerning appeals against actions and decisions taken by the prosecuting authorities. Relying on Articles 3, 5 and 10 of the Convention, he reiterated his previous complaints and asked the court to declare unlawful the prosecuting authorities’ failure to examine his complaint. 41. The applicant did not receive any reply from the Sharur District Court. 42. On 17 March 2008 the applicant lodged a complaint with the Supreme Court of the NAR, reiterating his previous complaints. He further complained that the Sharur District Court had failed to examine his complaint concerning the prosecuting authorities’ inaction. 43. In the meantime, the applicant sent the same complaint to the Supreme Court of the Republic of Azerbaijan, complaining that the Sharur District Court had failed to examine his complaint. By a letter of 1 April 2008 the Supreme Court forwarded the applicant’s complaint to the Sharur District Court for examination. 44. By a letter of 29 April 2008, the Supreme Court of the NAR informed the applicant that his complaint could not be examined by it because, as an appellate court, it examined appeals only against firstinstance courts’ decisions. 45. On 28 July 2008 the applicant made representations to the Judicial Legal Council, stating that the Sharur District Court had failed to examine his complaint. 46. By a letter of 5 August 2008, the Judicial Legal Council forwarded the applicant’s complaint to the Sharur District Court, asking the court to examine the complaint and to take necessary measures. The Judicial Legal Council further asked the Sharur District Court to inform the applicant about the result of the examination. 47. On 8 January 2009 the applicant applied again to the Judicial Legal Council, arguing that, despite its letter of 5 August 2008 sent to the Sharur District Court, he had not been informed of any decision taken by the Sharur District Court. 48. By a letter of 14 January 2009, the Judicial Legal Council forwarded the applicant’s complaint to the Sharur District Court. The Judicial Legal Council’s letter of 14 January 2009 was identical in wording to its letter of 5 August 2008. 49. On 18 June 2009 and on 6 January 2010 the applicant sent further letters to the Sharur District Court, reiterating his previous complaints. 50. The applicant did not receive any response from the Sharur District Court.