Communicated on 9 April 2018
FIFTH SECTION
Application no. 20918/09
Alasgar ISMAYILOV against Azerbaijan
and 3 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. Case of Ismayilov v. Azerbaijan, application no. 20918/09
At around 9 a.m. on 20 September 2007 the applicant was detained by the deputy head of the Sadarak district police office of Nakhchivan Autonomous Republic (NAR) and officer of the Sadarak traffic police department of the NAR in the vicinity of his home on his way to work and taken to the Sadarak district police office.
At the Sadarak district police office the applicant was not given food and drinking water and was forced to stand for a long time and later kept in a cell. He was detained at the police office until unspecified time at night and later placed in the Nakhchivan Mental Disorders Hospital. On 28 September 2007 he was transferred to the Psychiatric Hospital No. 1 in Baku and released on 4 October 2007 on the basis of a panel of physicians’ report that he was mentally healthy.
On 31 October 2007 the applicant lodged a criminal complaint with the Sadarak district prosecutor office, requesting it to open a criminal case into his detention in police custody and the conditions of his detention at the police office, as well as his confinement in psychiatric hospitals in the absence of an established ground. In his complaint he maintained that he was persecuted on account of his political affiliation with one of the opposition parties in Azerbaijan and the complaints he had lodged with the state authorities concerning the household management issues. He has not received any reply to his complaint.
He brought an action in civil courts against the prosecuting authorities’ failure to investigate his case. By a final decision of 28 October 2008, the Supreme Court upheld the lower courts’ decisions to refuse to examine his complaints on the merits, declaring lack of their competence in this connection.
B. Case of Mukhtarli v. Azerbaijan, application no. 31340/13
The applicant is a journalist and at the material time worked for the newspaper Bizim Yol. At around 2.30 p.m. on 2 April 2011 two police officers arrested the applicant, who attended an opposition demonstration held in Baku and took him to the Sabail district police office.
At the Sabail district police office he was reprimanded under Article 298 (Violation of the rules on holding public assemblies) of the Code of Administrative Offences for participation in the public assembly.
He was kept in a cell measuring 20 sq. m together with other fifty-five persons detained during the demonstration and was not provided with food and drinking water and access to toilet until release from the police office. The cell did not have a window and proper ventilation and was stuffy.
At 2 a.m. on 3 April 2011 the applicant was released together with other eleven persons from the cell. Later the police officers took him to area No. 20 outside Baku and released him there. He was not provided with documents concerning him being detained until 2 a.m. on 3 April 2011 at the police office.
By a decision of 9 May 2011, the Sabail district prosecutor office refused to open a criminal case, holding that there was no proof of the applicant’s claims of arbitrary detention at the police office. By a final decision of 16 August 2012, the Baku Court of Appeal dismissed the applicant’s complaint of ineffectiveness of the criminal investigation into his case.
C. Case of Adilov and Others v. Azerbaijan, application no. 32437/13
The five applicants in the present case, save the applicant Mr Jafarov, were members of the Popular Front Party, one of the opposition parties in Azerbaijan. On 7 November 2010 the applicants observed the parliamentary elections in one of the constituency polling stations.
At around 10 p.m. on 7 November 2010 when the applicants objected to the manner of counting of votes, they were apprehended by police officers and brought to the yard of the Surakhani District Court. They were kept there under supervision of police officers without access to food, drinking water and toilet and were not allowed to move to other parts of the facility. They were released at around 3-4 a.m. on 8 November 2010.
On 30 December 2010 the applicants lodged a criminal complaint with the Prosecutor General’s Office and the Ministry of Internal Affairs, requesting them to open a criminal case into their detention. Following their complaints, the Surakhani District Court quashed the Surakhani district prosecutor office’s decision of 11 February 2011 on refusal to open a criminal case. Later, the Surakhani district prosecutor office issued decisions to refuse to open a criminal case for the fourth consecutive time and each time the Surakhani District Court quashed them and ordered a fresh investigation into the case. The criminal proceedings were still pending at the time of introduction of the application.
D. Case of Ahmadova v. Azerbaijan, application no. 16121/17
The applicant is a journalist and at the material time collaborated with Meydan TV, a private media outlet.
At around 4 p.m. on 16 September 2015 the applicant was apprehended in the street by four plain-clothes persons, who forced her into a car. She was taken to the Organised Crime Unit of the Ministry of Internal Affairs (“the OCU”). During her stay at the OCU her mobile phone was taken away, and she was not allowed to contact her relatives and a lawyer. She was questioned by the officers of the OCU about her cooperation with Meydan TV as a journalist. The officers took the applicant home, searched her flat and seized her computer and brought her back to the OCU. Her computer was not returned to her. At around 9 p.m. she was released. She was not charged with any criminal offence, nor provided with any document concerning her alleged detention.
She lodged a criminal complaint with the prosecuting authorities, claiming, inter alia, unlawfulness of deprivation of liberty and search of her flat and seizure of her computer by the OCU’s officers. The Prosecutor General’s Office refused to open a criminal case into her complaints. By its final decision of 6 December 2016, the Baku Court of Appeal dismissed the applicant’s appeal against the decision to refuse to open a criminal case.
COMPLAINTS
1. The applicants complain, under Article 5 § 1 of the Convention, of a violation of their right to liberty.
2. The applicant in application no. 31340/13 complains, under Article 5 § 4 of the Convention, that he did not have at his disposal effective remedies to challenge the lawfulness of his detention.
3. The applicants in application no. 32437/13 complain, under Article 13 of the Convention, that they did not have effective remedies in respect of their complaints under Article 5 of the Convention.
4. The applicants in applications nos. 20918/09 and 31340/13 complain, under Article 3 of the Convention, of the conditions of detention in police custody.
5. The applicant in application no. 16121/17 complains, under Article 8 of the Convention, of the unlawfulness of the search of her flat and seizure of her computer. In this connection, she also complains, under Article 1 of Protocol No. 1 to the Convention, of the retention of her computer by the domestic authorities.
6. The applicant in application no. 16121/17 complains, under Article 10 of the Convention, of a violation of her freedom of expression.
COMMON QUESTIONS
Were the applicants deprived of their liberty in breach of Article 5 § 1 of the Convention? In particular, did their deprivation of liberty fall within the paragraphs of that provision?
The Government are requested to submit copies of all documents concerning the applicants’ cases.
CASE SPECIFIC QUESTIONS
In the case of Ismayilov v. Azerbaijan (no. 20918/09)
Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, in connection with his conditions of detention in the Sadarak district police office?
In the case of Mukhtarli v. Azerbaijan (no. 31340/13)
1. Was the applicant subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention, in connection with his conditions of detention in the Sabail district police office?
2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?
In the case of Adilov and Others v. Azerbaijan (no. 32437/13)
Did the applicants have at their disposal an effective procedure by which they could challenge the lawfulness of their detention, as required by Article 5 § 4 of the Convention?
In the case of Ahmadova v. Azerbaijan (no. 16121/17)
1. Was the search of the applicant’s flat and seizure of her computer in accordance with the law and necessary in terms of Article 8 of the Convention?
2. Has there been a violation of the applicant’s rights under Article 1 of Protocol No. 1 to the Convention on account of the seizure and retention of the applicant’s computer by the domestic authorities?
3. Has there been an interference with the applicant’s right to freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 of the Convention?
The Government are requested to submit copies of all documents concerning the applicants’ cases.
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
20918/09
01/04/2009
Alasgar ISMAYILOV
01/01/1938
Sadarak
Sevinj ALIYEVA
31340/13
16/02/2013
Afgan MUKHTARLI
09/01/1974
Baku
Rashid HACILI
32437/13
18/04/2013
Natig ADILOV
15/04/1979
Sabirabad
Eldar Huseynov
Baku
Nizami Jafarov
Baku
Kamila Aslanova
Baku
Agaverdi Rushanov
28/08/1963
Baku
Rashid HACILI
16121/17
16/02/2017
Aytaj AHMADOVA
18/07/1993
Baku
Elchin SADIQOV
Full & Egal Universal Law Academy