MINISTERS’ DEPUTIES

Decisions

CM/Del/Dec(2021)1419/H46-5

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH)   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 document CM/Notes/1419/H46-5

 

Decisions

The Deputies

1.         recalled that the examination of these groups of cases focuses on the lack of effective investigations into deaths of the applicants’ next of kin or ill-treatment allegedly imputable to law enforcement officers, or private persons, including in the course of dispersal of opposition demonstrations, and the lack of an effective domestic remedy in respect of ill-treatment;

As regards individual measures

2.         expressed their deep regret that, more than 14 years after some of the judgments 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 was provided within the time-limit set;

3.         consequently, called on the authorities to reinforce their dialogue with the Secretariat and the Committee on these cases and urged the competent authorities to assess and inform the Committee without further delay and in detail which investigatory steps may still be taken and/or to find alternative solutions where investigations are no longer possible in line with the Convention standards and the practice of the Committee of Ministers, in order to provide full redress to the applicants;

4.         urged the authorities to provide information on the measures taken in response to violations of Article 6 in Jannatov, Pirgurban, Yagublu and Ahadov (Yagublu), Haji and Others (Nasibov);

5.         invited the authorities to provide information on the payment of the outstanding just satisfaction amounts;

As regards general measures

6.         recalled that ill-treatment in law enforcement is a repetitive and unresolved problem in the respondent State, and noted 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;

Measures aiming to enhance effectiveness of investigations

7.         noted with interest a number of measures taken to enhance effectiveness of investigations, including the draft amendments to the Code of Criminal Procedure (CCP) to ensure immediate initiation of criminal proceedings into allegations of ill-treatment, conducting such investigations by a higher independent prosecutor and shifting the burden of proof to the authorities; invited the authorities to swiftly integrate these amendments to the CCP and 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;

8.         noted with interest that under the current criminal law increased fines are imposed in cases of
ill-treatment by law enforcement agents, however, in view of the recent CPT reports indicating the persistence of ill-treatment and ineffective investigations, invited the authorities to provide statistical data, including the number of complaints about il-treatment received by the various investigative bodies concerned, the number of full-fledged criminal investigations initiated, the number of convictions handed down and details of sentences; noted also that following the legislative amendment of 2012, the Criminal Code now classifies torture as a grave crime and invited the authorities to consider removing statutory time-limits for its prosecution in line with other member States’ and the Committee’s practice;

9.         invited the authorities to draw inspiration 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, abandoning the pre-investigation inquiry stage and opening immediately a criminal case when receiving such complaints as well as early examination of possible reopening of criminal investigations in cases concerning ineffective investigations and violations of Articles 2 and/or 3 of the Convention;

Measures aiming to prevent ill-treatment

10.       noted with interest that the current law stipulates provision of swift medical examination and transmission of information about ill-treatment to prosecutors after admission to a detention facility, that detainees’ possibility to have regular unlimited meetings with their lawyers, sending uncensored letters, unhindered access of the Commissioner for Human Rights of the Republic of Azerbaijan, the “Public Committee” and the representatives of the ICRC to any detention facility without prior notice; and invited the authorities to clarify in this regard, whether the “Public Committee” is sufficiently independent from the Ministry of Justice and whether their reports are publicly available;

11.       welcomed the legislative amendment providing for the possibility to resort to a private alternative forensic examination, and invited 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 the legal status  of such evidence will be 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;

12.       invited the authorities to extend the use of audio and video recording during interrogations;

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

13.       invited the authorities to provide information on the measures taken to ensure that the competent authorities act promptly and effectively investigate instances of ill-treatment by private persons and when lives of persons held in custody are at imminent risk;

Detainees’ access to non-advocate representatives before the European Court

14.       in view of the violations of Article 34 in some of the present cases, invited 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;

15.       noted the information on the general measures, which was submitted by the authorities too late for a detailed assessment at the present meeting; invited the authorities to provide the necessary information concerning the applicants’ redress by 31 July 2022 at the latest and decided to resume the examination of all the measures required in these cases at one of their DH meetings in 2023, and instructed the Secretariat to prepare a draft interim resolution for consideration at their next examination if no tangible progress is achieved in the individual and general measures as required in the present cases.