Court dismissed Mehman Guseynov’s torture complaint
Analysis of violations upon consideration of the complaint regarding Mehman Huseynov’s tortures
Sabail District Court, Baku
Case No. 6 (009) -24/2017
March 28, 2017
Presiding Judge: Ayten Aliyeva
Investigator of the Prosecutor’s Office of Baku: Hafiz Aliyev
Prosecutor of the Prosecutor’s Office of Baku: Rovshan Allahverdiyev
Complainant: Mehman Huseynov
Defenders: Elchin Sadygov, Shahla Gumbatova, Fuad Agayev
On January 9, 2017, around 19.40-19.45, Mehman Huseynov, the chairman of the Institute for Reporters’ Freedom and Safety, and his four friends Samir Asadli, Ulvi Hasanli, Mesud Asker, Elchin Sharifzade were in the center of Baku, at the intersection of Azi Aslanov and the Mardanovs streets. Mehman Huseynov left his friends to talk on his mobile phone. Suddenly, he saw a high-ranking official, an employee of the General Police Department of Baku, who recently summoned M.Huseynov to the General Police Department and required Huseynov to stop his journalistic investigations. At this time he was attacked by 5-6 people in civilian uniform. He started screaming and calling for help. At that moment an electroshock was applied to his vein, M.Huseynov fell to the ground, injuring his hands and knees. After that, he was closed his mouth and eyes with a rag, put a bag on his head and put him in the car. About an hour the police car was on the road. Although the distance to the nearest police department of Nasimi district, Baku is no more than 10 minutes. In the car, he was carried with his mouth tied, his eyes closed, his head lowered. This position made his breathing difficult. According to M.Huseynov, people who were with him in the car, discussed and decided where to take him: to the Office for Combating Organized Crime or to Baku Police Department. The car stopped several times.
At the end, M. Huseynov was brought to Nasimi District Police Department, where he was kept upside down with his mouth closed for a long time. He was brought to the office of the deputy head of the department, where he was opened his eyes and pulled a rag from his mouth. However, M.Huseynov lost consciousness, he was taken to another office, brought to life and returned to the office to the deputy chief. When Huseynov lost consciousness again, they gave the order to call an ambulance. The First Aid doctorsarrived at the place of the call, gave two sleeping pills to Huseynov, under the influence of which he slept until morning. Since his detention/ abduction on January 9, 2017, to his transfer to Nasimi District Court on January 10, 2017, neither his parents nor his lawyer were given any information about Huseynov at all.
M. Huseynov’s friends reported on his disappearance to 102 service (police call-up service), filed an application at the 22nd police station of Nasimi district, Baku. Mehman was at the District Police Department, but the police said they did not have information about him.
On January 10, Huseynov’s lawyers were informed that he was at Nasimi District Police Department. M.Huseynov was brought to Nasimi district court, where he was found guilty of committing an administrative offense under the article disobeying the lawful demand of police officers and fined for 200 manats. In court, M.Huseynov spoke about torture and ill-treatment.
On January 12, 2017, a judge of Nasimi District Court, Babek Panakhov, sent a letter to the Prosecutor’s Office of Baku to verify information stated in the complaint about torture and ill-treatment against M. Huseynov.
The investigation was entrusted to Hafiz Aliyev, and investigator of the Investigation Department of Baku Prosecutor’s Office. On January 19, 2017, H. Aliyev issued a resolution refusing to open a criminal case in the absence of a criminal incident.
M.Huseynov’s lawyers appealed to Sabail District Court with a complaint in the order of judicial supervision and tried to appeal against the unjustified resolution of Baku city prosecutor’s office dated on January 19, 2017. Mehman Huseynov told about the torture and ill treatment during a closed court session, clearly demonstrating his varicose veins and places of application of electric shock.
On March 28, 2017, Sabail District Court decided to refuse to satisfy the complaint and annulled the decision of the Prosecutor’s Office dated on January 19, 2017.
The comment by an expert lawyer:
Sabail District Court’s decision is illegal and unreasonable. The resolution of Baku prosecutor’s office states that there were traces of injuries on M. Huseynov’s body, blood on his clothes and that an “ambulance” was called to the Nasimi district police department to provide medical assistance to Huseynov. The doctors, who were summoned to the Office, confirmed Mehman’s diagnosis (varicosity) in their conclsion. In the conclusion of the forensic medical examination dated on January 13, 2017, it is said that there were indeed injuries on M. Huseynov’s body. However, it is noted that he could get such injuries as a result of the fall. M.Huseynov argues that when 5-6 people attacked him, they dumped him on the ground, put a bag on his head and took him away. He got injuries at the time of falling to the ground.
It should be noted that neither Baku prosecutor’s office nor the court investigated the state of health of M. Huseynov before his arrest, and the witnesses who saw him on the eve of his detention were not questioned.
According to Article 12 of the Constitution of Azerbaijan “I. Ensuring the rights and freedoms of a person and citizen, a decent standard of living for the citizens of the Republic of Azerbaijan is the supreme goal of the state.” Article 25 of the Constitution states that “All are equal before the law and the court”. Article 26 of the Constitution states that “I. Everyone has the right to protect his/her rights and freedoms in ways and by means not prohibited by the law. II. The state guarantees the protection of the rights and freedoms of everyone. “
According to Article 41 of the Constitution “I. Everyone has the right to health care and medical care. III. Officials who hide facts and incidents that pose a threat to life and health of people shall be held accountable in accordance with the law. “
In addition to the constitutional norms, torture and ill-treatment are prohibited by Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to Article 3 of the Convention, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” This rule has no exceptions, which means that under no circumstances (war, fight against terrorism, etc.) can torture and ill-treatment be appliedagainst detainees.
In the case of M. Huseynov, he became a victim of ill-treatment, which led to a deterioration in his health. In addition, public authorities (the prosecutor’s office, courts) did not investigate the facts of torture. M.Huseynov and his defense associate a bad treatment with his blogging activities. In this case, it should be noted that police often use electric shocks to dissent journalists and bloggers.
It should be noted that Azerbaijani citizens regularly die during the last 22 years as a result of torture and beatings by law enforcement officials. At the same time, despite the corresponding obligation taken by Azerbaijan upon joining to the Council of Europe in 2001, none of the law enforcement officers was prosecuted for the use of torture.
The facts of torture in the country were investigated by the European Court of Human Rights (ECHR), which issued more than one decision on the prohibition of torture and ill-treatment against Azerbaijan:
-Mamedov v. Azerbaijan (dated on 11 January 2007)
– M. Muradova v. Azerbaijan (dated on April 2, 2009),
-Laijev v. Azerbaijan (dated on April 10, 2014)
In the decision of the European Court of Human Rights, Laidjev v. Azerbaijan (paragraph 39) it is stated: “The Court reiterates that Article 3 governs one of the basic values of a democratic society. Torture and ill-treatment are prohibited upon the most difficult circumstances, even in the fight against terrorism and organized crime … In order to fall under article 3, ill-treatment must achieve at least a minimum level of cruelty. The assessment of this minimum level of cruelty depends on the general circumstances of the case, including the length of the treatment, the physical and mental consequences that resulted in ill-treatment, and in some cases it depends on the sex, age and state of health of the victim. “
The ECHR is principled in all its decisions regarding application of tortures and ill-treatment. We quote the decision of the European Court of Human Rights in the case of a French citizen: “… in the event that the body that was detained by the police in sound condition was found to be injured, the government must provide irrefutable explanations for the origin of such injuries. And if the government cannot explain such facts, then the issue of violation of Article 3 of the Convention arises “(according to the ECHR judgment under the case of Tomasi v. France, August 27, 1992
HYPERLINK “http://hudoc.echr.coe.int/eng”http://hudoc.echr.coe.int/eng#{“appno”:[“12850/87″],”itemid”:[“001-57796”]})“Although bodily injuries may seem easy quite, they are evidence of the use of physical force against a person deprived of liberty, which is therefore in an unequal position; Such treatment is at the same time an inhuman and degrading action”(clause 113, ECHR judgments”Tomasi v. France “, August 27, 1992
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The case of Mehman Huseynov regarding application of tortures and ill-treatment there are all the signs mentioned above.
Thus, the court rejecting the complaint of M. Huseynov on the investigation of torture and ill-treatment issued a decision unjustified by the law. It can be seen from the circumstances of the case that the police and, later, the courts, did not investigate the facts mentioned, and rejected the complaint without specifying irrefutable explanations and evidence, even though the burden of proof was laied precisely on them.