MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-5

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-5 Muradova (Application No. 22684/05), Mammadov (Jalaloglu) (Application No. 34445/04) and Mikayil Mammadov groups (Application No. 4762/05) v. Azerbaijan Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2018)177, DH-DD(2015)180,H/Exec(2021)17, CM/Del/Dec(2020)1377bis/H46-4

 

Application	Case	Judgment of	Final on	Indicator for the classification
MURADOVA GROUP
22684/05	MURADOVA	02/04/2009	02/07/2009	Complex problem
31805/06	RIZVANOV	17/04/2012	17/07/2012
2594/07	NAJAFLI	02/10/2012	02/01/2013
47137/07	TAHIROVA	03/10/2013	03/01/2014
67374/11	YAGUBLU AND AHADOV	30/01/2020	30/01/2020
34528/13	MAHADDINOVA AND OTHERS	19/11/2020	19/11/2020
31793/10	HASANOV	22/04/2021	22/04/2021
MAMMADOV (JALALOGLU) GROUP
34445/04	MAMMADOV (JALALOGLU)	11/01/2007	11/04/2007	Complex problem
22062/07	LAYIJOV	10/04/2014	10/07/2014
32132/07	JANNATOV	31/07/2014	31/10/2014
46505/08	IGBAL HASANOV	15/01/2015	15/04/2015
54204/08	UZEYIR JAFAROV	29/01/2015	29/04/2015
59075/09	MEHDIYEV	18/06/2015	18/09/2015
59135/09	EMIN HUSEYNOV	07/05/2015	07/08/2015
81553/12	HILAL MAMMADOV	04/02/2016	06/06/2016
39254/10	PIRGURBAN	20/12/2016	20/12/2016
42119/12	MUSTAFA HAJILI	24/11/2016	24/02/2017
22004/11	SATULLAYEV	19/03/2020	19/03/2020
3503/10	HAJI AND OTHERS	01/10/2020	01/10/2020
3650/12	HAZIYEV AND OTHERS	05/11/2020	05/11/2020
15996/12	HAJIYEV	22/04/2021	22/04/2021
MIKAYIL MAMMADOV GROUP
4762/05	MIKAYIL MAMMADOV	17/12/2009	17/03/2010	Complex problem
35587/08	ALIYEVA AND ALIYEV	31/07/2014	31/10/2014
8937/09	GASIMOV	10/11/2016	10/11/2016
10653/10	HUSEYNOVA	13/04/2017	13/07/2017
30500/11	MALIK BABAYEV	01/06/2017	01/09/2017
47095/09	MUSTAFAYEV	04/05/2017	04/08/2017
36837/11	MAMMADOV	14/02/2019	14/02/2019
35432/07	MAMMADOV AND OTHERS	21/02/2019	21/05/2019
35746/11	SARIBEKYAN AND BALYAN	30/01/2020	07/09/2020
69460/12	SHURIYYA ZEYNALOV	10/09/2020	10/12/2020

Case description

These groups of cases concern mainly the lack of effective investigations into the deaths of the applicants’ next of kin or their ill-treatment allegedly imputable to law enforcement officers (of the Ministry of Internal Affairs (“MIA”) and the Ministry of National Security (“MNS”)) from 2003 to 2012 or to private persons (procedural violations of Articles 2 and 3).[1]

The Court also found a substantive violation of Article 2 due to the failure of the Gobustan prison authorities to provide the applicant’s son, while being in a critical state after a fire broke out in his cell, with proper medical treatment in a timely manner in 2006 (in Mustafayev) and due to the authorities’ failure to convincingly explain the circumstances of the death of the applicants’ son in his cell in 2010 (in Saribekyan and Balyan), or shortly after transfer to the hospital in 2011 (in Shuriyya Zeynalov).

In several cases, the Court also found substantive violations of Article 3 due to the excessive use of force by law enforcement agents in the course of the applicants’ arrests and/or in custody, during dispersal of opposition demonstrations or due to failure to take measures to prevent dispersal of demonstration by private persons.

The Mammadov (Jalaloglu) case further concerns the lack of an effective domestic remedy in respect of ill-treatment by law enforcement agents (violation of Article 13).

Other violations found by the Court in the present cases:

-       Article 3: Lack of medical care while in detention in MNS facilities;

-       Article 5 §§ 1 and 3: Unlawful and arbitrary detention and the domestic courts’ use of an abstract and stereotyped formula and relying on irrelevant grounds when extending pre-trial detention;

-       Article 6 § 1: Excessive length of criminal proceedings, unfairness of the domestic proceedings or refusal to examine civil claim for defamation;

-       Article 10: Excessive use of force by law enforcement agents against the applicant despite his clear efforts to identify himself as a journalist who was covering a demonstration;

-       Article 11: Dispersal of peaceful gatherings;

-       Article 34: Refusal of prison authorities to allow the applicant to meet his representative, a lawyer whose licence to practise law had been suspended.

Status of execution

The Committee last examined these cases at its 1377bis meeting (September 2020) (DH).

It is recalled that the present groups of cases concern four main issues:

1) ill-treatment in the course of arrest and detention in facilities of MIA and MNS or failure to take measures to prevent ill-treatment inflicted by private persons;

2) lack of effective investigations into instances of that ill-treatment;

3) the authorities’ positive obligation to prevent deaths; and

4) access of a person in detention to their representative in respect of proceedings before the European Court.

Individual measures

a) As regards the procedural violations of Articles 2 and 3 in all cases

At the last examination of this group of cases, the Committee recalled that its concerns previously raised regarding the lack of information on new investigations into the deaths of the applicants’ next of kin or ill-treatment allegedly imputable to law enforcement officers, had not been alleviated. Information is therefore urgently awaited in respect of all the cases in this group. In this connection, the Committee had called on the authorities to reinforce their dialogue with the Secretariat.

As regards Aliyeva and Aliyev, as a result of the reopened criminal proceedings in 2020, Mr R.A. was convicted for the murder of the applicants’ son and sentenced to ten years’ imprisonment. Mr R.A. was also ordered to pay the applicants 40,010 Azerbaijani manats (EUR 20,070).

b) As regards the other violations

The only other individual measures which remain outstanding are those in respect of the violations of Article 6 (Layijov, Jannatov, Pirgurban, Yagublu and Ahadov (Yagublu), Haji and Others (Nasibov)).

As for Layijov the Committee noted the information provided by the authorities on 15 November 2021
(DH-DD(2021)1191) that in response to the violation of Article 6, the criminal proceedings in the Layijov case were reopened and the applicant was eventually acquitted and invited them to submit this information also in writing. As for Jannatov the Committee previously requested updated information. As for Pirgurban concerning excessive length of criminal proceedings, it was to be clarified whether the proceedings have been concluded.

Information on the above points is awaited as well as regarding the recent cases: Yagublu and Ahadov (Yagublu) and Haji and Others (Nasibov).

c) Payment of just satisfaction

In most of the cases, the just satisfaction awarded by the Court has been paid. The information on the outstanding amounts needs to be clarified with the authorities.

General measures

At its last examination, the Committee noted with interest the 2018-2020 Action Plan agreed between the Council of Europe and Azerbaijan, focusing inter alia on combatting police ill-treatment and impunity and encouraged the authorities to pursue their cooperation activities in order to eradicate all forms of ill-treatment and carry out effective investigations. The Committee welcomed again the authorities’ agreement, in 2018, to the publication of all the past reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) but noted with grave concern the conclusions of the CPT formulated in its 2017 visit report on Azerbaijan, which highlighted the systemic nature of torture and other forms of ill-treatment and ineffectiveness of investigations. It strongly encouraged the authorities to take due account of the relevant recommendations made by the CPT.

As regards the violation of Article 34, the Committee invited the authorities to provide information on the measures taken to ensure that non-advocate representatives are allowed to visit detainees who have lodged or intend to lodge an application with the Court under the same conditions as advocates.

The Committee also noted that substantial information on general measures was provided by the authorities (see DH-DD(2020)742 of 30 August 2020) but its assessment had not been possible, since it had been provided shortly before the meeting. This information can be summarised as follows.

Measures aiming to enhance effectiveness of investigations

Envisaged amendments of criminal law

The authorities submitted that within the framework of the “Support to Justice Reform Initiatives in Azerbaijan” project, implemented by the Council of Europe, draft recommendations for amendments to the Code of Criminal Procedure (CCP) have been prepared for the prevention of ill-treatment, which mainly included:

- a requirement to immediately institute criminal proceedings and launch preliminary investigations when a complaint of ill-treatment is lodged;

- investigations shall be conducted by a higher independent prosecutor;

- a provision stipulating that the burden of proof shall rest on the authorities;

- any evidence obtained under duress shall not be accepted in the criminal proceedings.

Increased criminal liability of law enforcement agents for ill-treatment

After the amendments to the Criminal Code (CC) of 31 May 2017, the amount of the fine for ill-treatment by an official (when no evidence of ill-treatment is established) increased from 4,000 to 6,000 manats (that is, from EUR 2,000 to 3,000). Otherwise, the offence of ill-treatment is punishable by imprisonment from three to eleven years.

Measures aiming to prevent ill-treatment

Increased safeguards in detention

Within 24 hours after admission to a detention facility a detainee undergoes a medical examination and the information about injuries or complaints of ill-treatment, if any, are forwarded to a prosecutor. For the efficient prevention of ill-treatment, information about a hotline number is posted in various places of detention facilities. Detainees can also regularly meet with their relatives, write uncensored letters and have telephone conversations twice a week. Audio and video recording of investigative acts is used more often. It is mandatory to use video recording only in the course of a search or during a seizure without the presence of witness or suspect. Temporary detention facilities are equipped with video surveillance systems.

The “Public Committee” supervised by the Minister of Justice, as well as the Commissioner for Human Rights of Azerbaijan, members of his National Prevention Group, and the representatives of the International Committee of the Red Cross (ICRC) have unhindered access to any detention facility without prior notice. The members of the Public Committee include human rights activists and NGOs. They exercise public control over detention facilities and participate in the process of pardoning and amnesty.

Forensic examinations

Several amendments to the CCP have already been introduced concerning forensic examinations offering more precise definitions of the terms of the examination and expert opinion, improving rights of persons who can request examination, increasing the number of candidates who can become experts and setting up private forensic examination units.

Detainees’ access to lawyers

According to the current legislation an advocate shall have access to a client simply upon presenting their identification document and powers of attorney to the penitentiary officer.

Non-advocate representatives are also allowed to visit detainees who have lodged or intend to lodge an application with the European Court, since according to Article 81.7 of the Code on Execution of Sentences detainees can meet with non-advocates who have the right to provide legal assistance. In this regard according to the authorities, the issues that have led to the violation under Article 34 of the Convention in Hilal Mammadov have been resolved.

Other measures

The authorities further provided information concerning implementation of the recommendations of the CPT in respect of detention facilities, the increased releases of detainees by pardons, improvement of conditions of detention, medical assistance and other measures related to prison.

Rule 9 communication by an NGO

On 28 October 2021 the NGO International Partnership for Human Rights provided comments in response to the authorities’information on the aforementioned general measures (DH-DD(2020)742).They noted that the draft criminal law amendments have not been published or made otherwise available to the public, thus preventing civil society from participating in the criminal law review process and that it is unclear how these amendments will increase criminal liability for ill-treatment by law-enforcement agents. The NGO provided that the alternative forensic examinations may not be accepted in cases of ill-treatment by law enforcement agents. They further submitted that the information on ill-treatment collected by state authorities is not available to the public and expressed concerns about the independence of the Public Committee. The NGO finally noted that non-advocate representatives are allowed to visit detainees only in prisons^[2] (not in custody), which is carried out in the presence of a prison officer and they are not allowed to exchange any documents with detainees.

Analysis by the Secretariat

Individual measures

a) As regards the procedural violations of Articles 2 and 3 in all cases

It is deeply regrettable that, more than 14 years after some of the cases in these groups became final and despite the Committee’s call to provide the outstanding information on individual measures before 31 December 2020, no updated information has been received.

The outstanding issues regarding ineffective investigations, including failure to open full criminal investigations; dismissal of the allegations of the injuries inflicted by police mainly on their denial of ill-treatment; delays or failure to conduct forensic examination; failure to interrogate witnesses; absence of conducting identification parades; absence of cross-examining witnesses and other shortcomings are outlined in H/Exec(2021)17.

This situation is a matter of grave concern as the lack of information from the authorities prevents the Committee from assessing the status of execution in particular in which cases individual measures are still possible and the investigation should be conducted as a matter of urgency, or where investigations are no longer possible in which cases alternative adequate redress for the victims may be provided.[3]

In this context, it is once again recalled that, under the Committee’s established practice when fresh investigations should be initiated following the judgment of the European Court, the authorities are required to: 

-       assess in detail which investigatory steps can still be taken;

-       indicate which investigatory steps can no longer be taken for practical or legal reasons;

-       indicate what means are deployed to overcome existing obstacles;

-       and what concrete results are expected to be achieved and within which time limit.[4]

The mere listing of those cases where the investigation was reopened and indicating that it is still pending does not allow the Committee to assess the efforts made by the authorities to provide adequate redress to the applicants. In this connection the Committee may wish to invite the authorities again to reinforce their dialogue with the Secretariat.

b) Outstanding individual measures in respect of Article 6 violations

Given the time that has elapsed since the adoption of the four judgments (Jannatov, Pirgurban, Yagublu and Ahadov (Yagublu) and Haji and Others (Nasibov)) where the Court also found a violation of Article 6, the authorities should be urged by the Committee to rapidly submit the outstanding information on the individual measures taken, in particular on whether the impugned proceedings were reopened in view of the findings of the European Court and their outcome.

c) Payment of just satisfaction

While the just satisfaction has been paid in majority of cases, the information is outstanding in respect of some cases and should be clarified with the authorities.

General measures

At the outset the Committee may recall that ill-treatment in law enforcement is a repetitive, unresolved problem in the respondent State, and note with serious concern that the leading cases in the present groups of cases are pending before the Committee for more than ten years, while over 70 new similar applications are currently pending before the European Court.

1. Ill-treatment in the course of arrest and detention in facilities of MIA and MNS or failure to take measures to prevent ill-treatment inflicted by private persons

a) Measures aiming to enhance effectiveness of investigations

(i) draft amendments to the CCP

It may be noted with interest that within the framework of the “Support to Justice Reform Initiatives in Azerbaijan” project implemented by the Council of Europe amendments to the CCP for the prevention of ill-treatment have been drafted. The authorities may be invited to swiftly integrate these amendments to the CCP and to clarify if the investigations conducted by a higher prosecutor will not depend on the fact-finding and collection of evidence by law enforcement agents, allegedly involved in the impugned incident.

(ii) increased criminal liability of law enforcement agents for ill-treatment

It is interesting that the fine for ill-treatment by an official (when no evidence of ill-treatment is established) has increased. However, in view of the recent CPT reports indicating the persistence of ill-treatment and ineffective investigations mentioned at the last examination of this group,[5] it would be useful to receive statistical data in that regard, including the number of complaints about ill-treatment allegations received by various investigative bodies concerned, the number of full-fledged criminal investigations initiated, the number of convictions handed down and details of sentences. In this context, it is noted that following the legislative amendment of 2012, the Criminal Code now classifies torture as a grave crime. The authorities should however be invited to consider removing statutory time-limits^[6] for its prosecution, in line with other member States’ and the Committee’s practice.

b) Measures aiming to prevent ill-treatment

Information provided about the prevention of ill-treatment may be noted with interest. Similarly, it may be noted with interest that there is unhindered access to any detention facility without prior notice of the Commissioner for Human Rights of the Republic of Azerbaijan, the aforementioned “Public Committee” and the representatives of the ICRC.However, the authorities may be invited to clarify, whether the “Public Committee” is sufficiently independent from the Ministry of Justice and whether their reports are accessible to the public. As for the audio and video recording it is advisable to have them in respect of each interrogation[7] and not only in the course of a search or during a seizure without the presence of witness or suspect.

The Committee may welcome the envisaged legislative amendment providing for the possibility to resort to a private alternative forensic examination, and invite the authorities to clarify whether the reports of these examinations  shall be approved by the state authorities or other independent medical institution before they can be used in judicial proceedings, what will be the legal status of such evidence as opposed to state forensic examinations and whether the alternative forensic examination may be accepted in criminal cases concerning allegations of ill-treatment by law enforcement agents.

2. Failure to take measures to prevent ill-treatment inflicted by private persons and the authorities’ positive obligation to protect detainees’ life

Information should be requested on the measures taken to ensure that the competent authorities act promptly and effectively investigate instances of ill-treatment by private persons[8] and when lives of persons held in custody are at imminent risk.[9]

3. Article 34 violations – detainees’ access to non-advocate representatives before the European Court

While the authorities submitted that non-advocate representatives are allowed to visit detainees, the Committee may invite the authorities to provide further clarifications as to who among non-advocates may be considered to have the right to provide legal assistance, which documents they should provide to access detainees, whether they can enjoy the lawyer-client privilege to effectively represent the applicants and whether their visits are allowed in all types of detention facilities, including custody facilities.

4. Other considerations

a) Possible inspiration from other member States’ practice in this domain

Examples of good practices may be inspired from the practices of other member States to enhance effectiveness of investigations which include the establishment of an independent investigative body dealing with police ill-treatment complaints,[10] abandoning the pre-investigation inquiry stage and immediately opening a criminal case when receiving such complaints.[11] The Committee might  also wish to invite the authorities to draw inspiration from the practice of other member States concerning early examination of possible ex officio reopening of criminal investigations in cases concerning ineffective investigations under Articles 2 and/or 3 of the Convention. For instance in Bulgaria^[12] and Poland,^[13] the Prosecutor’s Office initiates examination of complaints on ineffective investigations from the stage of communication of such cases by the European Court (DH-DD(2018)12). As for Turkey, the Committee has urged the authorities to consider introducing a practice of re-examining such investigations at an earlier stage of the Convention proceedings.^[14]

b) Proposal to prepare an Interim Resolution in case of continued failure to provide complete information on individual measures

The Committee may wish to reaffirm its grave concern at the authorities’ failure to provide information and invite them to provide the necessary information concerning the applicants’ redress by 31 July 2022 at the latest. It may also wish to consider stepping up its supervisory action, and if no tangible progress is achieved in the individual and general measures required in the present cases, it may instruct the Secretariat to prepare a draft interim resolution for consideration at the next examination of this group of cases, at one of its DH meetings in 2023.

5. High level consultations in Baku

The Azerbaijani authorities engaged in high level consultations with Secretariat, which, at the time of the preparation of the present Notes, were under way. Consultations took place in Baku between 27-28 October 2021, and subsequently the authorities sent written information on the general measures, which came too late for a detailed assessment to be made for the present meeting and will be assessed for the Committee’s next examination of the present group.

Financing assured: YES