The inconvenience of an academician in the prisons of Azerbaijan. Serious violations of the ECHR

JUDGMENT

Mammadov and others v. Azerbaijan 21.02.2019 (no. 35432/07)

see here

SUMMARY

The case Mammadov and Others v. Azerbaijan (application no. 35432/07) concerned an Azerbaijani
academic who complained that he had been arrested in 2007, held in unacknowledged detention for
24 hours and then sentenced to 15 days’ administrative detention which he had spent in a location
unknown either to his family or lawyer. He alleged that he had been ill-treated during that period
and had not been provided with medical care for high blood pressure, prostatitis and an overactive
thyroid. He also complained that he had then spent over a year in pre-trial detention without a
proper justification until his conviction of high treason and sentencing to 10 years’ imprisonment. He
died in detention in 2009 of a heart attack.

PROVISIONS

Article 3

Article 5

Article 2

PRINCIPAL FACTS

The applicants are Novruzali Khanmammad oglu Mammadov, who was born in 1942, his wife,
Maryam Aliaga gizi Mammadova, and their son, Emil Novruzali oglu Mammadov. They are/were
Azerbaijani nationals.

The case concerned the first applicant, who was an academic specialising in the Talysh language and
editor-in-chief of an Azerbaijani-Talysh newspaper, and his complaints about unlawful detention and ill-treatment by officers of the Ministry of National Security (“the MNS”) in 2007 as well as his
subsequent pre-trial detention. He died in detention in 2009 and his wife and son continued the
proceedings in his stead, lodging a further complaint concerning his death. The son died in 2011 and
his mother continued the proceedings.

Mr Mamamadov was arrested by MNS officers on 2 February 2007 in a park in Baku and taken for
questioning about alleged collaboration with the Iranian intelligence service. He was released
24 hours later near a metro station, but was immediately re-arrested by the police for refusing to
identify himself. He was taken before a judge the same day, found guilty of failing to comply with a
lawful order by a police officer and sentenced to 15 days’ administrative detention.

Just before his due release date, he was charged with high treason and placed in pre-trial detention for three months. The courts extended his detention over the next year and four months on the grounds of the seriousness of the charges and the possibility that he might abscond or obstruct the investigation. The courts also later cited the need for more time to carry out the investigation. Mr Mammadov’s requests to be released because of his age and the fact that he had a permanent place of residence were not examined.

The case went to trial in November 2007. He was convicted in June 2008 and sentenced to ten years’ imprisonment.

In the meantime, Mr Mammadov himself, his lawyer and his family had raised several complaints before the authorities and courts alleging unlawful detention and ill-treatment.

Mr Mammadov’s wife and lawyer both requested a medical examination after noticing that he had a bruised hand during the administrative hearing of 3 February 2007. An investigator ordered an examination in April 2007, which, however, recorded no sign of any injury on his body.

Mr Mammadov’s family tried to find out where he was being held after his administrative conviction
by sending letters and telegrams to the law-enforcement authorities and the courts, in vain. Mr Mammadov himself alleged in the various court proceedings that he had not been provided with any document concerning either his arrest or the first 24 hours of his detention and that he had been ill-treated during that time. According to him, the abuse had then continued during his administrative detention when he was taken back to the MNS premises. In particular he stated that MNS agents had crushed his fingers with a chair, struck the left side of his rib cage, injuring his shoulder, had subjected him to unrecorded interviews at night and had told him alarming but false information about his family. He also asserted that he had not been allowed to use the toilet during questioning, even though he had told the investigator he suffered from prostatitis, and had been obliged to urinate in his trousers. He had not been provided with medical care for his illnesses, which also included hypertension and an overactive thyroid.

No criminal investigation has been carried out into these complaints. The domestic courts which
ordered Mr Mammadov’s pre-trial detention ignored his allegations, while the same complaints
brought in separate proceedings in October 2007 were dismissed as unsubstantiated. The courts
never addressed his complaint of unlawful detention.

During his detention Mr Mammadov was examined by doctors on numerous occasions in 2007 and
2008 on account of his ill health. Between March and July 2009 he refused to be transferred to a
specialist medical facility because he said he could not afford it and, in any case, doubted the quality
of the care there. He eventually accepted a transfer at the end of July 2009 and was seen by a
number of specialists, but died on 17 August 2009.

The prosecuting authorities immediately launched an enquiry into his death, but refused to institute
criminal proceedings because of a lack of evidence of a crime. They based their decision on two
reports concluding that Mr Mammadov had died from a heart attack and that this had not been
related to his medical care, which had been adequate. The domestic courts upheld this decision.

THE DECISON OF THE COURT

Article 5 § 1 (unrecorded detention)

While Mr Mammadov had consistently complained of unlawful detention between 2 and 3 February
2007 on the MNS premises in the various court proceedings in his case, the Government had failed
to provide any evidence to rebut his allegation. As for the domestic courts, they had never
addressed that part of his complaint.

The Court therefore considered that Mr Mammadov’s version of events was plausible and accepted
that he had been detained for 24 hours as alleged. That detention had not been documented at all,
which amounted to a particularly grave violation of Article 5 of the Convention.

Article 5 § 3 (pre-trial detention for more than one year without proper justification)

The Court concluded that the authorities had failed to give “relevant” and “sufficient” reasons to
justify Mr Mammadov’s pre-trial detention between February 2007 and June 2008. In particular, the
first-instance and appellate courts had used a standard template when ordering and extending his
pre-trial detention, without giving any reasons why the grounds cited in the template had been
relevant to the specific circumstances of Mr Mammadov’s case. The courts had even substantiated
their decisions on the basis of a completely irrelevant and unacceptable reason for detaining a
person, namely the need for more time to complete the investigation.

Article 3 (ill-treatment and investigation)

The Court accepted Mr Mammadov’s version of events concerning his ill-treatment by MNS officers
between 2 and 17 February 2007, which had been detailed and for the most part consistent and plausible. Even though he had not presented any medical evidence, the Court observed that that had been because he had been detained during that period at an undisclosed location without any access to the outside world. The first 24 hours of his detention had been unrecorded and, again according to his consistent and plausible submissions, he had then been detained until 17 February 2007 without his family or lawyer knowing his whereabouts. Moreover, his statement alleging ill-treatment had been supported by witness evidence, albeit from his lawyer and family, about
injuries on his hand at the administrative hearing on his case.

The Court also accepted Mr Mammadov’s submission that he had not been provided with adequate
medical care. It was clear that neither his lawyer nor his family could have brought him the
necessary medication as they had not been informed of his place of detention.

The Government, on the other hand, had failed to submit information or evidence to call into
question Mr Mammadov’s allegations of ill-treatment by the MNS officers or to show that he had
been provided with care and/or medication. That was despite the fact that the events complained of
were exclusively within the authorities’ knowledge.

The Court therefore concluded that Mr Mammadov had been subjected to ill-treatment in that he
had both been abused by the MNS officers and deprived of medical care. Given his advanced age
and vulnerable state of health, that ill-treatment had to have caused him physical pain and
considerable mental suffering, diminishing his human dignity. The ill-treatment, exacerbated by a
lack of access to the outside world, had been serious enough for it to be considered inhuman and
degrading, in violation of Article 3 of the Convention.

Lastly, the Court held that there had been a further violation of Article 3 as concerned the
investigation into his allegations of ill-treatment. No criminal investigation had ever been carried out
despite Mr Mammadov having raised very specific complaints as to the date, time and nature of his
ill-treatment. The authorities had ordered a medical examination, but that only had been two
months after the events, when any signs of injury could have already disappeared. As there had
been no criminal investigation, Mr Mammadov, his lawyer and family, the MNS officers and any
other possible witnesses had never been questioned by an investigator. Similarly, such witnesses
had never been heard by the courts which had either ignored Mr Mammadov’s allegations of
ill-treatment or had dismissed them as unsubstantiated.

Article 2 (death in detention and investigation)

As concerned Mr Mammadov’s death in detention, the Court noted that his wife and son did not
dispute the fact that he had twice refused to be transferred to the medical facility between March
and July 2009. They argued that he had refused such a transfer because of his financial situation and
the quality of the medical care in the facility.

The Court could not accept that argument as under domestic law prisoners were given free medical
care and there had been no evidence in the case file that money had been demanded for his transfer
or that the care in the medical facility had been lacking. The Court therefore concluded that the
authorities had not been responsible for the delay in Mr Mammadov’s transfer to the medical facility
and had done everything possible to try to avert his death. Moreover, although Mr Mammadov had
had high blood pressure and prostatitis, he had not been suffering from a potentially life-threatening
disease. There had accordingly been no violation of Article 2 under the substantive aspect.

However, it found that the authorities had failed to carry out an effective investigation into his
death. The decision not to begin a criminal investigation had been based on reports which had only
taken into account the cause of death and the medical care after his transfer to the medical facility,
and not what consequences the delay in transferring him could have had. In addition, the
prosecuting authorities had not looked into why he had refused to be transferred. Nor had they
clarified if there had been a link between his death and his placement in a punishment cell for 15
days in January 2009. Lastly, they had not informed his wife and son of any progress in the investigation or involved them in it in any way. There had therefore been a violation of Article 2 under the procedural aspect.

Article 41 (just satisfaction)

The Court held that Azerbaijan was to pay the Ms Mammadova 20,000 euros (EUR) in respect of
non-pecuniary damage and EUR 4,000 in respect of costs and expenses(echrcaselaw.com editing).


ECHRCaseLaw

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