CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 juin 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s3BA7E44F { margin-top:0pt; margin-bottom:0pt; text-indent:17.85pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sDD6F64E2 { width:137.11pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 64422/19 Razim AMIRASLANLI against Azerbaijan   The European Court of Human Rights (First Section), sitting on 18 June 2024 as a Committee composed of:   Krzysztof Wojtyczek , President ,   Lətif Hüseynov,   Erik Wennerström , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   64422/19) 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”) on 30   November 2019 by an Azerbaijani national, Mr Razim Malikajdar oglu Amiraslanli ( Razim Məlikəjdər oğlu Əmiraslanlı – “the applicant”), who was born in 1962, lives in Baku and was represented by Mr   N. Karimli, a lawyer based in Azerbaijan; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns the applicant’s allegations that he had been subjected to degrading treatment during his undocumented arrest by the police to hinder him from participating in a peaceful assembly. 2.     On 17 July 2019 an opposition political party organised a peaceful assembly in Baku. 3.     The applicant claimed that he had been on his way to the place of demonstration, when several police officers forcefully had arrested him, put him in a police car and taken him to Sabail District police station no. 9. 4.     After conducting a search on him and detaining him for about an hour, the police officers had taken him to the outskirts of the city and released him. 5.     Based on these allegations, the applicant lodged a complaint with the Sabail District Court complaining of the unlawfulness of the police’s actions under Article 449 of the Code of Criminal Procedure (“the CCrP”) (procedure for review of the lawfulness of procedural actions or decisions taken by the prosecuting authorities). In particular, he asked the court to recognise that he had been subjected to degrading treatment, that his rights to liberty and to freedom of peaceful assembly had been violated, and that he had been discriminated against on account of his political affiliation. 6 .     On 30 August 2019 the Sabail District Court refused to examine the applicant’s complaint, finding that he should first have lodged a complaint with the prosecuting authorities before lodging a complaint under the judicial review procedure. In that connection, the court referred specifically to Article   449 of the CCrP, pointing out that a court could conduct judicial supervision only after an applicant had lodged a complaint with the prosecuting authorities, as the courts decide whether the impugned decisions and actions (inactions) violate human rights following investigations by the prosecution into the facts of the case. 7.     The applicant appealed against that decision. 8 .     On 19 September 2019 the Baku Court of Appeal rejected the applicant’s complaint on the same grounds. It further clarified that in order to rule that a decision or an action had been unlawful, it first had to be established that the alleged action had in fact taken place and be supported by evidence. This investigation into the facts of the case is conducted by the prosecuting authorities, and if a party alleges that the investigation was not effective, then that party can lodge a complaint with the court. RELEVANT DOMESTIC LAW The Code of Criminal Procedure 9.     In accordance with Article 37 of the CCrP, criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. 10.     In accordance with Article 207 of the CCrP, an investigator or the prosecutor in charge of the case, after the examination of information about the commission of a criminal offence, should take a decision instituting criminal proceedings, a decision refusing to institute criminal proceedings or a decision transmitting the information to the relevant investigating authority or to the court in the case of a private criminal prosecution. 11.     Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge the actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his or her counsel may challenge such actions or decisions concerning, inter   alia , a refusal to institute criminal proceedings, or the suspension or termination of criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure set out in Articles 452 and 453 of the CCrP. The Criminal Code 12.     Unlawful deprivation of liberty not related to kidnapping is a crime punishable by correctional labour for a period of up to two years, or imprisonment for a period of up to one year (Article   145.1). 13.     Intentional unlawful arrest is a crime punishable by restriction of liberty for a period of up to two years together with deprivation of the right to hold a certain position or engage in a certain activity for a period of up to three years, or imprisonment for a period of up to two years (Article 292.1). Intentional unlawful detention is a crime punishable by imprisonment for a period of up to four years (Article 292.2). THE COURT’S ASSESSMENT 14.     The applicant complained under Articles 3, 5, 11, 13 and 14 of the Convention that he had been subjected to degrading treatment during his arrest by the police, that his right to liberty had been infringed as he had been detained without any documentation for about an hour, that his freedom of peaceful assembly had been violated, that he had been discriminated against on political grounds, and that he had not had any effective domestic remedy in respect of his complaints. 15.     The relevant general principles on the exhaustion of domestic remedies have been summarised in Vučković and Others v.   Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 71-73, 25   March 2014), and Shuriyya Zeynalov v. Azerbaijan (no. 69460/12, § 38, 10   September 2020). 16.     The Court notes that it has already found, in numerous cases against Azerbaijan, that lodging a criminal complaint with the police or the prosecution authorities about the alleged ill-treatment or the unlawful use of force by law-enforcement authorities constitutes an effective remedy to be exhausted before lodging a complaint with the Court (see   Akif Mammadov v.   Azerbaijan (dec.), no. 46903/07, § 29, 13 May 2014, and Rizvanov v.   Azerbaijan , no.   31805/06, §§ 16-20, 17   April 2012). The Court has also found, in a case against Azerbaijan, that lodging a criminal complaint with the investigating authorities constitutes an effective remedy in the context of alleged unlawful deprivation of liberty by the police (see Mammadov and Abbasov v.   Azerbaijan , no. 1172/12, 8 July 2021). The Court also observes that such remedies, while providing avenues of redress for alleged violations, also serve the purpose of the establishment of the facts (see Yagublu v.   Azerbaijan [Committee], no. 69686/12, § 42, 15 July 2021). 17.     Turning to the circumstances of the present case, the Court observes that the applicant never lodged a criminal complaint with the investigating authorities about his alleged ill-treatment and deprivation of liberty by the police and the violation of his other Convention rights as a result of these actions of the police. 18.     The applicant has also failed to explain why he did not lodge a criminal complaint with the investigating authorities following the domestic courts’ decisions explaining to him that his complaint could not be examined in accordance with the judicial review procedure under Article 449 of the   CCrP and that he should have lodged a complaint with the prosecuting authorities before lodging a complaint with the court under Article 449 of the   CCrP (see paragraphs 6 and 8 above). Moreover, the applicant has not argued that there were special circumstances dispensing him from lodging a criminal complaint with the investigating authorities and the Court does not see any such special circumstances in the present case. 19.     The Court also reiterates that mere doubts as to the prospect of success and the effectiveness of the available domestic remedies are not sufficient to dispense with the requirement to make normal use of the available remedies (see   Kunqurova   v. Azerbaijan   (dec.), no.   5117/03, 23   June 2005, and   Guliyev and Ramazanov v.   Azerbaijan   (dec.), no.   34553/02, 14   February 2006). 20.     It follows that the applicant has not complied with the condition of exhaustion of domestic remedies and, therefore, the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 11 July 2024.     Liv Tigerstedt   Krzysztof Wojtyczek   Deputy Registrar   President