MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-9

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-9 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(2023)1483/H46-5

 

Application	Case	Judgment of	Final on	Indicator for the classification
MURADOVA GROUP
22684/05	MURADOVA	02/04/2009	02/07/2009	Complex problem
46419/16	ABISHOV	23/03/2023	23/03/2023
51295/11	BADALYAN	22/10/2021	22/10/2021
31793/10	HASANOV	22/04/2021	22/04/2021
62161/14	KHOJOYAN AND VARDAZARYAN	28/02/2022	28/02/2022
34528/13	MAHADDINOVA AND OTHERS	19/11/2020	19/11/2020
25054/17	MUSTAFAYEV AND OTHERS	13/06/2024	13/06/2024
2594/07	NAJAFLI	02/10/2012	02/01/2013
32427/16	PETROSYAN	28/02/2022	28/02/2022
31805/06	RIZVANOV	17/04/2012	17/07/2012
72611/14	TAGIYEVA	07/10/2022	07/10/2022
47137/07	TAHIROVA	03/10/2013	03/01/2014
67374/11	YAGUBLU AND AHADOV	30/01/2020	30/01/2020
MAMMADOV (JALALOGLU) GROUP
34445/04	MAMMADOV (JALALOGLU)	11/01/2007	11/04/2007	Complex problem
59135/09	EMIN HUSEYNOV	07/05/2015	07/08/2015
20605/13	GURBANOV AND MAMMADOV	12/10/2023	12/10/2023
3503/10	HAJI AND OTHERS	01/10/2020	01/10/2020
15996/12	HAJIYEV	22/04/2021	22/04/2021
3650/12	HAZIYEV AND OTHERS	05/11/2020	05/11/2020
81553/12	HILAL MAMMADOV	04/02/2016	06/06/2016
46505/08	IGBAL HASANOV	15/01/2015	15/04/2015
32132/07	JANNATOV	31/07/2014	31/10/2014
22062/07	LAYIJOV	10/04/2014	10/07/2014
59075/09	MEHDIYEV	18/06/2015	18/09/2015
42119/12	MUSTAFA HAJILI	24/11/2016	24/02/2017
39254/10	PIRGURBAN	20/12/2016	20/12/2016
22004/11	SATULLAYEV	19/03/2020	19/03/2020
MIKAYIL MAMMADOV GROUP
4762/05	MIKAYIL MAMMADOV	17/12/2009	17/03/2010	Complex problem
24950/14	ABDULLAYEV	12/10/2023	12/10/2023
8937/09	GASIMOV	10/11/2016	10/11/2016
10653/10	HUSEYNOVA	13/04/2017	13/07/2017
13527/18	LAPSHIN	11/10/2021	11/10/2021
30500/11	MALIK BABAYEV	01/06/2017	01/09/2017
36837/11	MAMMADOV	14/02/2019	14/02/2019
35432/07	MAMMADOV AND OTHERS	21/02/2019	21/05/2019
47095/09	MUSTAFAYEV	04/05/2017	04/08/2017
35746/11	SARIBEKYAN AND BALYAN	30/01/2020	07/09/2020
69460/12	SHURIYYA ZEYNALOV	10/09/2020	10/12/2020

Case description

The common violation in these three groups relates to the lack of effective investigations into the deaths or ill-treatment of the applicants or their next-of-kin, allegedly imputable to law enforcement officersor private persons, between 2003 and 2017^[1] (procedural violations of Articles 2 and 3).^[2]

In three cases, the Court also found substantive violations of Article 2 concerning the deaths of the applicants’ relatives in prison, because of the failure to provide timely medical treatment or other reasons (Mustafayev, Lapshin and Shuriyya Zeynalav).

In a further 18 cases, the Court found substantive violations of Article 3 of the Convention, finding it established that the applicants had been ill-treated during their arrest or in detention, or by law enforcement officers.^[3] In Badalyan, the Court found a substantive violation of Article 3 of the Convention, holding that the authorities had failed to provide a satisfactory and convincing explanation to show that the applicant’s serious mental injuries were caused by the conditions of his detention and the treatment he underwent while in the respondent State’s captivity.^[4]

Four cases^[5] concern the ill-treatment and/or death of Armenian nationals while in detention between 2009 and 2014 after having crossed the border into Azerbaijan. In three of these cases (Khojoyan and Vardazaryan, Petrosyan and Saribekyan and Balyan), the Court found substantive violations of Articles 2 and 3 of the Convention, holding that the authorities had failed to account for the circumstances of the death (Saribekyan and Balyan, and Petrosyan) and that the injuries inflicted while in detention had posed a serious and imminent risk to life (Khojoyan and Vardazaryan). In these cases, the Court also noted the failure of the authorities of the respondent State to investigate whether ethnic hatred had played a role in the treatment of the victims (procedural violations of Articles 2 and 3).^[6]

Hilal Mammadov also concerns access of a person in detention to his representative in respect of proceedings before the European Court (violation of Article 34).

In several cases, the Court found additional violations, most of the general measures in respect of which are examined in relation to other groups of cases.^[7]

Status of execution

The Committee last examined these cases at its 1483^rd meeting (December 2023) (DH) and invited the authorities to provide updated information on both individual and general measures by 30 June 2024. No new information has been provided by the authorities for this meeting. The details of the information previously provided by the authorities may be found in H/Exec(2024)12, and  in the Notes prepared for the Committee’s examination of the group at its 1483^rd meeting (December 2023) (DH)[8].

Individual measures

As regards the procedural violations of Articles 2 and 3 (ineffective investigations)

In several cases, due to expiration of the retention period, the investigation files were destroyed. In some cases, no criminal proceedings were initiated as the applicants or their heirs made no such requests, or it has not been possible to contact the applicant. In some cases, the applicants did not object to the termination of the criminal investigation; in some others – proceedings were terminated due to the expiration of the statutory time-limit, or they were suspended as the whereabouts of the accused could not be established. Further, in some cases the possibility of a reopening is still under consideration of the authorities.

At its last examination, the Committee invited the authorities to clarify which investigatory steps may still be taken, what alternative solutions could be available if investigations are no longer possible due to procedural reasons. Underlining the importance of the swift conduct of investigations to avoid impunity for serious human rights violations, the Committee also regretted the lack of promptness and strongly urged the authorities to redouble their efforts to ensure that the investigations in question are opened and conducted in a Convention compliant manner.

The Committee further requested the authorities to evaluate the possibility of reopening the investigations in the Khojoyan and Vardazaryan, Petrosyan and Saribekyan and Balyan cases, based on the findings of the European Court, with a view to investigating whether ethnic hatred played a role.

As regards the violation of Article 6 (use of evidence obtained unlawfully)

In the Lajiyov case, the authorities confirmed that the applicant was acquitted on 27 April 2016. Information is still outstanding for the cases of Jannatov, Pirgurban, Yagublu and Ahadov (Yagublu), and Haji and Others (Nasibov).

Just satisfaction

Information is still outstanding in respect of some cases.

General measures

At its last examination of these groups in December 2023, the Committee recalled with regret that ill-treatment in law enforcement remains a repetitive problem in the respondent State.

Measures to enhance the effectiveness of investigations

In December 2023, the Committee noted with interest the measures adopted to increase supervision over investigation of ill-treatment. At the same time, it indicated that significant improvement in the situation was necessary, and repeated its call for statistical data on the overall number of ill-treatment complaints. The Committee also invited the authorities to swiftly integrate amendments to the Code of Criminal Procedure (which were envisaged since 2020), to ensure that ill-treatment allegations are immediately investigated, that such investigations are conducted by a higher independent prosecutor and do not depend on any fact-finding or collection of evidence by the accused law enforcement agents and that the burden of proof is shifted to the authorities, notably in situation of deprivation of liberty.

The authorities were further invited to consider removing the statutory time-limits for prosecution of torture, encouraged to consider drawing inspiration from the best practices of other member States to enhance effectiveness of investigations and to consider measures to ensure that, in all relevant cases, the police and prosecution services investigate whether ethnic hatred was a contributing factor in the ill-treatment of the victims.

 

Measures aimed at preventing ill-treatment

At its last examination, the Committee noted with interest the information provided and invited the authorities to clarify whether the “Public Committee” is sufficiently independent from the Ministry of Justice and reports of these monitoring bodies are publicly available. The Committee further invited the authorities to extend the use of audio and video recording to interrogations and to clarify the legal standing of private forensic examination reports.

Measures concerning detainees’ access to non-advocate representatives before the European Court

The Committee invited the authorities to clarify whether non-advocate lawyers may have the right to provide legal assistance, and under which conditions, and whether the lawyer-client confidentiality and correspondence without censorship is in practice ensured in detention facilities.

Other relevant information

Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

In July 2024, the CPT issued a public statement on Azerbaijan[9] and decided to publish the report
(CPT/Inf (2024) 23) on the 2022 ad hoc visit to the country as an annex to the public statement (see also the executive summary of the report: CPT/Inf (2024) 23 – Part).

Concerning the police, the CPT called upon the Azerbaijani authorities to make genuine efforts to break the “unholy alliance” between the continued resort to physical ill-treatment/torture by the police and the pervasive practice of threats, planting evidence, forced confessions and extortion. An unequivocal message from the highest political level is required to fundamentally change the approach by the police to its work and sanctions corresponding to the severity of the offence must be imposed systematically in all cases of ill-treatment/torture. More generally, the CPT is extremely concerned by the virtual absence of progress regarding the implementation of its long-standing recommendations on the subject of the widespread resort to physical ill-treatment (including, on occasion, torture) by the police in Azerbaijan. As regards safeguards against ill-treatment, the CPT noted that these remained largely a dead letter and were mostly inoperative in practice and sometimes served de facto to protect the police against any accusations and shield them from accountability, instead of serving to protect the detained persons. It also noted elements, notably that medical screening was duly performed within 24 hours upon arrival to detention facility (however, training is still required for better describing injuries). Inter-prisoner violence did occur occasionally but seemed to be of a low intensity and mainly of a verbal nature. Staff generally intervened adequately and promptly.

Concerning prisons, the health-care services of the two penitentiary establishments visited appeared to be sufficiently staffed, equipped and supplied with medication and materials. Medical screening was duly performed within 24 hours from arrival, in conditions respecting medical confidentiality. However, health-care staff were still in need of more training in describing injuries. The delegation observed that there were no delays in access to primary medical care and that there was sufficient access to specialist care; further, the delegation noted a marked improvement with respect to psychiatric care and psychological assistance.

Analysis of the Secretariat

The Committee could express regret that, at the date of finalising these Notes, no updated information had been provided following the Committee’s last examination and decisions.

Individual measures

As regards just satisfaction, payment information is required in 12 cases.^[10] The Committee may strongly recall the authorities’ unconditional obligation to pay the just satisfaction awarded to the applicants and invite them to pay the relevant sums without further delay.

As to violations of Articles 2 and 3, according to the Committee’s well-established practice, the finding of a violation of the procedural aspect of Articles 2 and/or 3 entails an obligation on the respondent State to evaluate ex officio the possibility of reopening of investigations and to ensure that they are conducted in a Convention-compliant manner. In addition, when fresh investigations are initiated, the authorities are required to assess in detail which investigatory steps can still be taken, indicate which investigatory steps can no longer be taken and what means are deployed to overcome existing obstacles as well as expected concrete results to be achieved within certain time-limit. A prompt response by the authorities in investigating a use of lethal force is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.[11]

However, in the present groups, regrettably, although some of the violations relate to events that took place 20 years ago, no significant progress has been achieved in the investigations. In several cases the investigation files were destroyed due to expiration of the retention period, in other cases investigations were terminated due to passage of time and for other no information has been provided on the steps taken, if any, during the long-lasting investigations. The Committee may therefore underline its concern about the lack of progress reported on the ongoing investigations and stress once again the importance of the swift conduct of investigations to avoid impunity for serious human rights violations, calling on the authorities to intensify their efforts to ensure a Convention compliant, effective investigation.

Regarding the Article 6 violations in this group (use of unlawful evidence leading to an unfair criminal trial), information also remains awaited as to whether the respective criminal proceedings were reopened, and if so, about their outcome.^[12]

Concerning the failure of the authorities to investigate ethnic hatred as a contributing factor in the treatment of the victims in the cases of Khojoyan and Vardazaryan, Petrosyan and Saribekyan and Balyan, the Committee may repeat its previous call on the authorities to evaluate the possibility of reopening the investigations with a view to investigating whether ethnic hatred played a role.

General measures

The recently published CPT report[13] expressed concern about the virtual absence of progress regarding the implementation of its long-standing recommendations on the subject of the widespread resort to physical ill-treatment (including, on occasion, torture) by the police in Azerbaijan. In its June 2024 concluding observations on the fifth periodic report on Azerbaijan, the United Nations Committee against Torture^[14] was alarmed by widespread and persistent reports of the routine use of torture and ill-treatment in the country. The Committee might therefore confirm its previous decisions, in which it noted with regret that ill-treatment in law enforcement remains a persistent problem in Azerbaijan.

Measures to enhance effectiveness of investigations

The Committee has been highlighting the problem of delay in investigations in the context of the individual measures in this group. Considering the lack of response to previous decisions, the Committee may call upon the authorities to address the root cause of the lengthy investigations and make concrete progress to enhance the effectiveness of investigations into alleged ill-treatment. To this end, they may consider taking advantage of the technical expertise of the Council of Europe to explore ways to reduce the length of investigations and criminal proceedings by implementing specific training and capacity-building measures.

The Committee may also repeat its invitation to the authorities to swiftly adopt the draft amendments to the Code of Criminal Procedure envisaged since 2020, which will ensure that ill-treatment allegations are immediately investigated, conducted by a higher independent prosecutor, do not depend on any fact-finding or collection of evidence by the accused law enforcement agents, and the burden of proof is shifted to the authorities, notably in situation of deprivation of liberty.

In addition, the removal of statutory time-limits for prosecution of ill-treatment^[15] remains a key avenue to avoid impunity, and the Committee may wish to repeat it. It may also recall that there is inspiration to be taken from best practices in other member States to enhance the effectiveness of investigations. These include:

·         the establishment of an independent investigative body dealing with police ill-treatment complaints; and

·         abandoning the pre-investigation inquiry stage and immediately opening a criminal case when such complaints are received, early ex officio reopening of criminal investigations in cases relating to ineffective investigations under Articles 2 and/or 3 of the Convention.^[16]

For its next examination, it would also be important for the Committee to be provided with the information it requested on updated statistical data and on the overall number of ill-treatment complaints (including the number of full-fledged criminal investigations initiated, the number of convictions and the details of sentences imposed).

Measures also remain outstanding to ensure that, in all relevant cases, the police and prosecution services investigate whether ethnic hatred was a contributing factor in the ill-treatment of the victim.

Measures aimed at preventing ill-treatment

The elements provided by the CPT report since the last examination of these groups only reinforce the Committee’s conclusion that ill-treatment in law enforcement remains a persistent problem in the respondent State. In these circumstances it is important for Azerbaijan to express its resolve to adopt all relevant measures against ill-treatment, which have been required for many years in light of the judgments of the Court and the findings of the CPT. The competent authorities should convey an unambiguous message of zero-tolerance of ill-treatment, at the highest level. For further measures, the CPT’s recommendations provide invaluable guidance, on which the authorities could be strongly encouraged to build in order to define an appropriate strategy. The Committee may wish to recall that the CPT clearly expressed its readiness to support the authorities in their work. Also, the Secretariat remains at their disposal to provide its expertise, in the spirit of the “cooperative and inclusive approach” called for in the Reykjavik Declaration.

The authorities’ response should notably address the questions already asked by the Committee in relation to the monitoring roles of the National Prevention Group and the Independent Monitoring Group within the Human Rights Commissioner’s office. It should also reply to the Committee’s invitation to extend the use of audio and video recording to interrogations, and to clarify the legal status and value of private forensic examinations of ill-treatment allegations (in comparison with state forensic examinations) – including on whether the private forensic examination units are independent from the state institutions. Previous questions from the Committee in this respect remain fully valid and could be recalled.

Measures to ensure the authorities’ positive obligation to protect the right to life and to investigate incidents between private parties

Some of the cases in this group concern delays in treatment of the critically ill prisoners.[17] Consequently, in their previous submissions, the authorities had provided information on training of prison staff on the topic “Primary health care” and “Health promotion and preventive measures in prisons”. Additional information is awaited on the result of the training activities. Moreover, increased surveillance in detention centers may decrease violence in prison and provide a possibility for swift response when lives of persons held in custody are at imminent risk.

Further information is required on the measures taken or envisaged to ensure that the competent authorities act promptly and effectively to investigate ill-treatment inflicted by private persons.^[18]

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

The Committee may reiterate its request to the authorities to clarify whether the lawyers should seek authorisation from a judge or an investigator to visit a detainee complaining of ill-treatment, and whether this requirement is prescribed by the law. In addition, information is needed as to whether, in practice, the lawyer-client confidentiality is ensured in detention centres and whether correspondence with a detainee may be exchanged without censorship.

The authorities should also be invited to provide clarifications as to who among non-advocate lawyers 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.

Proposals for further action

Considering the significant time for which these cases have been pending execution, the complexity of the problems under consideration and the importance of the guidance recently provided by the CPT on aspects which are central to the execution of these groups, the Committee may wish to call upon the authorities to clearly express their resolve to tackle all outstanding questions (individual and general) and to provide relevant information by the end of June 2025 at the latest. It may recall the CPT’s and the Secretariat’s readiness to support the authorities in their work, in the spirit of the “cooperative and inclusive approach” called for in the Reykjavik Declaration. The Committee may wish to re-examine these groups at their December 2025 DH meeting and, in the absence of tangible progress, to consider taking new action.

Financing assured: YES