CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 19 mars 2020

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AZERBAIJAN (Application no. 22004/11)             JUDGMENT   STRASBOURG 19 March 2020   This judgment is final but it may be subject to editorial revision. In the case of Satullayev v. Azerbaijan, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   André Potocki, President,   Lәtif Hüseynov,   Anja Seibert-Fohr, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 25 February 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 22004/11) 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 Suleyman Aliheydar oglu Satullayev ( Süleyman Əliheydər oğlu Sətullayev – “the applicant”), on 17 March 2011. 2.     The applicant was represented by Mr A. Gasimli, a lawyer based in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Əsgərov. 3.     On 10   June 2014 the Government were given notice of the complaints concerning the applicant’s alleged ill-treatment by the police and the lawfulness of his arrest and detention, and the remainder of the application was declared inadmissible, pursuant to Rule   54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1976 and lives in Sumgayit. 5.     He was working as a shop assistant at a family-owned shop in Sumgayit at the time of the events described below. The applicant’s alleged ill-treatment and detention by the police The applicant’s version of events 6.     At around 6.15 p.m. on 20 August 2008 two police officers in plain clothes entered the shop and asked the applicant for water. When the applicant gave them a bottle of water, they told him that they were police officers and that they would carry out a search of the shop because they had information that drug dealing was occurring in the shop. At that moment other police officers in plain clothes entered the shop. 7.     The applicant protested against the search, asking to see a search warrant, so R.B., the deputy head of Sumgayit City Police Station no.   4, ordered other police officers present to handcuff the applicant. The applicant continued to protest against the search, asking the officers to show him the relevant documentation. By way of reply to his requests, R.B. insulted him and another police officer hit him on the head with the palm of his hand ( qapaz vurmaq ). The applicant’s father and mother arrived at the shop before the end of the search. 8.     Following the search the applicant was taken to Sumgayit City Police Station no. 4. He was detained there until 1.30 a.m. on 21 August 2008 and was then allowed to leave the police station. During this period, he remained handcuffed for around three hours. The Government’s version of events 9.     On 20 August 2008 the police officers went to the shop run by the applicant in order to question him about an allegation that he was selling stolen SIM cards, cigarettes and food. As there was a need to continue the questioning the applicant was invited to the police station, where he was questioned for thirty minutes. The applicant was not ill-treated by the police. Remedies used by the applicant 10.     On an unspecified date the applicant lodged a criminal complaint, complaining of his ill-treatment and unlawful detention by the police. The applicant did not provide the Court with a copy of his complaint. 11.     It appears from the case file that on 31 August 2008 the investigator in charge of the case ordered a forensic medical examination of the applicant; an examination was conducted by an expert, who submitted his report on 1   September 2008. According to forensic report no. 800, no injury or trace of injury was found on the applicant’s body. 12.     It further appears from the documents in the case file that, under a decision issued on 20 September 2008 by the Sumgayit City Police Department, two police officers, R.B. and E.A., were held liable in disciplinary proceedings for the unprofessional ( səriştəsiz ) organisation of the operation of 20 August 2008. Under that decision, E.A. was subjected to the disciplinary sanction of a reprimand, but no disciplinary sanction was imposed in respect of R.B. because he had already been sent on study leave for one year. 13.     On 13 October 2008 an investigator from the Sumgayit City Prosecutor’s Office declined to institute criminal proceedings against the police officers who had been involved in the events of 20 August 2008. The investigator considered that the applicant had not been ill-treated or detained by the police officers. In that connection, the investigator relied on statements given by four of the police officers to the effect that they had not carried out a search in the shop but that they had merely asked the applicant to follow them to the police station and that he had complied with their request. They further noted that the applicant had not been handcuffed and that he had left the police station following a thirty ‑ minute conversation. The investigator also referred to the findings of forensic report no. 800, according to which the expert had found no sign of injury on the applicant’s body. Lastly, he noted that disciplinary proceedings had been instituted against two police officers, R.B. and E.A., for the unprofessional organisation of the operation. 14.     On an unspecified date the applicant lodged a complaint against that decision with the Sumgayit City Court. He complained, in particular, that the investigator had failed to carry out an effective investigation and had not questioned all the witnesses to the incident. 15.     On 19 February 2010 the Sumgayit City Court quashed the investigator’s decision and ordered the investigating authorities to carry out a new investigation. The court held that the investigator had failed to identify and question all the relevant witnesses and had relied solely on the submissions of the police officers and the conclusions of the forensic report of 1 September 2008. In that connection, the first-instance court found that the investigator had not questioned the applicant’s mother and had made no mention of statements given during the investigation by the applicant’s father and brother, as well as by four other persons residing in the area where the shop was situated. 16.     On 1 March 2010 the deputy prosecutor of the Sumgayit City Prosecutor’s Office declined to institute criminal proceedings, finding that it had not been established that the above-mentioned police officers had hit the applicant or had unlawfully detained him at the police station. The prosecutor referred to the submissions of the police officers and to the forensic report of 1 September 2008. As regards the testimony of the applicant’s family members (his father, mother and brother) and of four residents of the area where the shop was situated, the prosecutor noted that those witnesses had stated that the applicant had been handcuffed and taken to the police office. However, he held that that testimony could not be considered as reliable, because it had been given by people with an interest in the outcome of the case. 17.     On 1 June 2010 the applicant lodged a complaint against the prosecutor’s decision with the Sumgayit City Court, reiterating his previous complaints. He also disputed the prosecutor’s assessment of the witness testimony given by his family members and the four other above ‑ mentioned persons. 18.     On 7 July 2010 the Sumgayit City Court dismissed the applicant’s complaint. The court held that the prosecutor had conducted an effective investigation and that there was no reason to quash the decision in question. It also relied on the fact that the two police officers had been subjected to disciplinary proceedings. The court made no mention of the applicant’s complaint concerning the assessment of the witness testimony by the investigating authorities. 19.     On 23 September 2010 the Sumgayit Court of Appeal upheld the first-instance court’s decision. That decision was not amenable to appeal. There is no information in the case file as regards the date on which the applicant was provided with a copy of that decision. RELEVANT DOMESTIC LAW 20.     The relevant provisions of the domestic law concerning the prohibition of ill-treatment are described in detail in the Court’s judgment in Mustafa Hajili v. Azerbaijan (no. 42119/12, §§ 26-28, 24 November 2016). THE LAW The Government’s objection of non-compliance with the six-month rule 21.     The Government submitted that the application should be declared inadmissible because the applicant had failed to comply with the six ‑ month rule. In that connection, they submitted that the Registry of the Court had received the application on 4 April 2011 – more than six months after the date of the Sumgayit Court of Appeal’s decision of 23   September 2010. 22.     The applicant contested the Government’s submissions, maintaining that the application had been lodged with the Court on 17   March 2011. 23.     The Court reiterates that the date of the postmark recording the date on which an application was sent is treated as the date of that application, and not the date of receipt stamped on that application (see Brežec v.   Croatia , no. 7177/10, § 29, 18 July 2013, and Vasiliauskas v.   Lithuania [GC], no. 35343/05, § 117, ECHR 2015). In the present case the final domestic decision was delivered by the Sumgayit Court of Appeal on 23   September 2010. Accordingly, even assuming that the applicant was served with a copy of the Sumgayit Court of Appeal’s decision of 23   September 2010 on the date of its delivery, the six-month time-limit for lodging an application with the Court, within the meaning of Article   35 §§ 1 and 4 of the Convention, started to run on the following day, 24 September 2010 and expired on 23 March 2011, at midnight (see Sabri Güneş v   Turkey [GC], no. 27396/06, § 60, 29 June 2012). 24.     Having examined the material in the case file, the Court notes that the envelope containing the application bears a stamp to the effect that it was received at the Registry of the Court on 4 April 2011. However, the present application was signed and dated by the applicant on 17 March 2011, and the envelope containing the application was posted from Azerbaijan on 18 March 2011 (the envelope bears the postmark of the Sumgayit post office with that date). The applicant therefore complied with the six ‑ month rule. The Court accordingly dismisses the Government’s objection. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 25.     The applicant complained that he had been ill-treated by the police and that the domestic authorities had failed to investigate his allegation of ill-treatment. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Admissibility 26.     Without clearly raising any objection as regards the applicant’s victim status and the exhaustion of the domestic remedies in respect of his complaint under Article 3 of the Convention, the Government submitted that, in view of the fact that two police officers had been subjected to disciplinary proceedings on 20 September 2008, the applicant had received redress with respect to his complaint and he had been entitled to then bring a civil action in order to receive just satisfaction. 27.     The applicant maintained his complaint. 28.     Even assuming that the Government’s above-mentioned submissions should be considered to constitute objections as regards the applicant’s victim status and the exhaustion of the domestic remedies, the Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged (either expressly or in substance), and then afforded redress for, the breach in question of the Convention (see Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III, and Dalban v. Romania [GC], no.   28114/95, § 44, ECHR   1999 ‑ VI). Moreover, in cases of willful ill ‑ treatment, a breach of Article 3 cannot be remedied only by the award of compensation to the victim; rather, there should be an effective investigation, in addition to the payment of adequate compensation (see Gäfgen v. Germany [GC], no.   22978/05, § 119, ECHR 2010). 29.     However, in the present case the domestic courts did not (either expressly or in substance) acknowledge that the applicant had been subjected to treatment contrary to Article 3 of the Convention and did not afford him redress for a breach of his Convention rights. The foregoing considerations are sufficient to enable the Court to conclude that the applicant is still a victim within the meaning of the Convention in respect of his complaint under Article 3 of the Convention. 30.     The Court further considers that the applicant duly complained to the relevant domestic courts against the prosecutor’s decision not to institute criminal proceedings in respect of his allegation of ill ‑ treatment; accordingly, the Government’s argument that the applicant had failed to exhaust domestic remedies should be rejected. 31.     Having regard to this, 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. Merits Alleged ill-treatment of the applicant (a)    The parties’ submissions 32.     The applicant maintained that one of the police officers had hit him on the head with the palm of his hand. He submitted that the forensic report dated 1 September 2008 had not determined any trace of injury on his body because the forensic medical examination had been carried out only belatedly. In support of his complaint, he relied on the respective witness testimony submitted by his family members and four other persons, without providing the Court with copies of that testimony or giving more details about its content. 33.     The Government maintained that the applicant had not been subjected to inhuman or degrading treatment by the police. In that connection, they referred to the conclusions of the forensic report of 1   September 2008. (b)    The Court’s assessment 34.     The Court observes that, although the applicant maintained in his observations to the Court his version of the events, according to which a police officer had hit him on the head with the palm of his hand on 20   August 2008 (see paragraph 7 above), he failed to provide more details in that regard or to present any medical evidence in support of his allegation. The forensic medical examination of the applicant did not uncover any bodily injury (see paragraph 11 above). In that connection, the Court cannot accept the applicant’s argument disputing the forensic examination’s conclusions on the grounds that it was carried out belatedly. It is clear from the documents in the case file that the forensic examination of the applicant was conducted only one day after the investigator’s decision ordering that examination and eleven days after the incident (see paragraph   11 above). Moreover, given the fact the applicant failed to provide the Court with a copy of his complaint or to specify the date on which he had lodged his complaint (see paragraph 10 above), the Court cannot establish whether the investigator’s decision ordering the forensic examination was delivered in a timely manner. 35.     The Court further notes that it can accept that ill-treatment such as that which allegedly occurred on 20 August 2008 (namely a police officer hitting the applicant on the head with the palm of his hand) need not always lead to visible consequences (compare Mammadov and Others v.   Azerbaijan , no. 35432/07, § 110, 21 February 2019). However, in the present case the applicant also failed to submit to the Court any other evidence in support of his allegation of ill-treatment. Moreover, although he referred to the witness testimony given during the investigation in support of his complaint, it does not appear from the documents in the case file that the witnesses in question made any statements in respect of the allegation that the applicant had been beaten up by the police (see paragraph 16 above). 36.     Given those circumstances, and having regard to all the material in its possession, the Court considers that the evidence before it does not enable it to find to the standard of proof “beyond reasonable doubt” that the applicant was subjected to ill-treatment by the police on 20 August 2008 (compare Jannatov v. Azerbaijan , no. 32132/07, §§ 59-60, 31 July 2014, and Mehdiyev v. Azerbaijan , no. 59075/09, §§   73 ‑ 74, 18 June 2015). 37.     Consequently, the Court cannot establish a substantive violation of Article 3 of the Convention in respect of the applicant’s alleged ill ‑ treatment. Alleged failure to carry out an effective investigation (a)    The parties’ submissions 38.     The applicant maintained that the domestic authorities had failed to conduct an effective investigation into his ill-treatment. 39.     The Government submitted that the domestic authorities had conducted an effective investigation into the applicant’s allegation of ill ‑ treatment. The investigating authorities had ordered that he be forensically examined and had questioned all the relevant witnesses. (b)    The Court’s assessment 40.     The Court refers to the general principles established by its case ‑ law, as set out in the judgment in Bouyid v. Belgium [GC] (no.   23380/09, §§   114 ‑ 123, ECHR 2015), which are equally pertinent to the present case. 41.     Turning to the circumstances of the present case the Court observes that, following the applicant’s complaint that he had been assaulted by the police on 20 August 2008, the investigating authorities carried out a criminal inquiry; however, the deputy prosecutor of the Sumgayit City Prosecutor’s Office declined to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment. That decision was upheld by the domestic courts. It remains to be assessed whether the criminal inquiry was effective, as required by Article 3. 42.     In that connection, the Court observes a number of shortcomings in the criminal inquiry carried out by the domestic authorities. 43.     The Court notes that the domestic authorities failed to take all the measures reasonably available to them to secure the evidence concerning the applicant’s alleged ill-treatment. In particular, although the statements of the police officers clearly conflicted with the applicant’s version of events, the investigator in charge of the case did not order a face-to-face confrontation between the applicant and the police officers (see Hilal   Mammadov v. Azerbaijan , no. 81553/12, § 96, 4 February 2016, and Mustafa Hajili v. Azerbaijan , no. 42119/12, § 52, 24 November 2016). The investigator also failed to take any other investigative measure, such as staging an identification parade in order to allow the applicant to identify the perpetrator of his alleged ill-treatment. 44.     The Court further notes that neither the prosecuting authorities nor the domestic courts provided any explanation in their respective decisions as to why they considered the statements of the police officers credible but the applicant’s submissions unreliable (see Mushegh Saghatelyan v.   Armenia , no. 23086/08, § 154, 20 September 2018). In particular, although two police officers had been subjected to disciplinary proceedings in connection with the events of 20 August 2008, the version of events provided by those police officers was readily accepted and never seriously questioned by the domestic authorities and courts. 45.     The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s claim of ill-treatment was ineffective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 46.     The applicant complained under Article 5 of the Convention that his arrest and detention by the police on 20 August 2008 had been unlawful. The Court considers that the present complaint falls to be examined under Article 5 § 1 of the Convention, which reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)     the lawful detention of a person after conviction by a competent court; (b)     the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d)     the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e)     the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” Admissibility 47.     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. Merits The parties’ submissions 48.     The applicant maintained his complaint, pointing out that he had been unlawfully detained at the police station for a period of six hours. 49.     The Government contested the applicant’s submissions. They submitted that the applicant had not been detained within the meaning of Article 5 § 1 of the Convention, but had been merely questioned at the police station for a period of thirty minutes and had been then free to leave the police station. The Court’s assessment 50.     The Court reiterates that in proclaiming the “right to liberty”, paragraph 1 of Article   5 contemplates the physical liberty of the person. Accordingly, it is not concerned with mere restrictions on liberty of movement, which are governed by Article   2 of Protocol No. 4. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting-point must be his or her specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance (see De Tommaso v.   Italy [GC], no.   43395/09, §   80, 23   February 2017, with further references, and Khlaifia and Others v.   Italy [GC], no.   16483/12, §   64, 15   December 2016). 51.     The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty (see Creangă v.   Romania [GC], no.   29226/03, §   92, 23   February 2012). 52.     The Court reiterates its established case-law to the effect that Article   5 §   1 may also apply to deprivations of liberty of a very short length (see, among many authorities, M.A. v.   Cyprus , no.   41872/10, §   190, ECHR   2013 (extracts)). 53.     In the present case, while the applicant maintained that on 20   August 2008 he had been taken to the police station and detained there for a period of six hours, the Government submitted that the applicant had not been detained within the meaning of Article 5 of the Convention because he had been invited to visit the police station, where he had been questioned for thirty minutes (see paragraphs 6-9 above). 54.     The Court cannot accept the Government’s assertion. It is undisputed that the applicant was taken to the police station by police officers and that he was not free to leave the premises of the police station without their authorisation. The Court thus considers that there was an element of coercion that was indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see   Foka v.   Turkey , no. 28940/95, §§ 74-79, 24 June 2008; Gillan and Quinton v. the United Kingdom , no. 4158/05, §   57, ECHR 2010 (extracts); Shimovolos v. Russia , no. 30194/09, § 50, 21   June 2011; and Khalikova v.   Azerbaijan , no. 42883/11, § 102, 22   October 2015). The applicant was therefore deprived of his liberty within the meaning of Article   5   § 1. 55.     As to the exact length of time for which the applicant was deprived of his liberty, in the absence of any official document supporting of the Government’s position, the benefit of the doubt should be given to the applicant, as it falls primarily to the Government to provide a detailed hour ‑ by-hour account supported by relevant and convincing evidence (see Salayev v. Azerbaijan , no. 40900/05, § 39, 9   November 2010). Moreover, despite the Court explicitly requesting the Government to submit copies of all the documents relating to the domestic proceedings, the Government failed to provide the Court with any documents relating to the applicant’s present complaint, such as the relevant extracts from the logbook of the police station, the record of his questioning by the police, or any other document relating to the applicant’s detention. Accordingly, in view of the Government’s inability to provide convincing and relevant evidence in support of their factual claim, the Court accepts that the applicant was in fact detained at the police station for a period of six hours. 56.     As regards the question of whether the applicant’s detention during this period was “lawful” within the meaning of Article 5 § 1 of the Convention, the Court notes that the applicant’s deprivation of liberty was not documented at all. The Court reiterates in this connection that the unrecorded detention of an individual constitutes a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a grave violation of that provision (see   Anguelova v. Bulgaria , no. 38361/97, § 154, ECHR 2002 ‑ IV; Nagiyev v. Azerbaijan , no. 16499/09, § 64, 23 April 2015; and Mammadov and   Others , cited above, § 89). 57.     There has accordingly been a violation of Article 5 § 1 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 58.     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.” Damage 59.     The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. 60.     The Government submitted that the applicant’s claim was unsubstantiated and excessive. 61.     The Court considers that the applicant has suffered non ‑ pecuniary damage that cannot be compensated for solely by the finding of a violation 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 6,000 under this head, plus any tax that may be chargeable on this amount. Costs and expenses 62.     The applicant also claimed EUR 2,000 for the costs and expenses incurred before the domestic courts and the Court. In support of his claim, the applicant submitted a contract concluded with his representative. 63.     The Government asked the Court to dismiss the applicant’s claim. In particular, they submitted that the applicant had failed to itemise the claimed costs and expenses and that he had not been represented by a lawyer in the domestic proceedings. 64.     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. In the present case, having regard to the documents in its possession, the Court finds that the applicant was not represented by a lawyer in the domestic proceedings and that his application to the Court was not prepared by a lawyer. Therefore, the amount of work done by his representative before the Court was limited to the preparation of his observations. Having regard to these facts, as well as to the documents in its possession and to the above criteria, the Court considers it reasonable to award to the applicant the sum of EUR 500 covering costs under all heads. Default interest 65.     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, Declares the application admissible; Holds that there has been no violation of Article 3 of the Convention under its substantive limb; Holds that there has been a violation of Article 3 of the Convention under its procedural limb; Holds that there has been a violation of Article 5 § 1 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)         EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)       EUR 500 (five hundred 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; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 19 March 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Milan Blaško   André Potocki Deputy Registrar   President