Mammadov and Others v. Azerbaijan (Application no. 35432/07)

Key paragraph(s) can be found below the document.

89. As regards the question of whether the first applicant’s detention during this period was “lawful” within the meaning of Article 5 § 1 of the Convention, the Court notes that the first applicant’s deprivation of liberty – from 2 to 3 February – was not documented at all. The Court reiterates in this connection that the unrecorded detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention, and discloses a grave violation of that provision (see Anguelova v. Bulgaria, no. 38361/97, § 154, ECHR 2002‑IV, and Nagiyev, cited above, § 64).

100. In view of the foregoing considerations, the Court concludes that, by using a standard formula merely listing the grounds for detention without addressing the specific facts of the first applicant’s case, and by relying on irrelevant grounds, the authorities failed to give “relevant” and “sufficient” reasons to justify the need for the first applicant’s pre-trial detention.

116. In the instant case, having regard to the fact that there was witness evidence about injuries (even if it came from the first applicant’s lawyer and family members), that the first applicant was detained by the authorities in an undisclosed location at the time when the alleged acts of ill-treatment took place, that the events complained of lied wholly within the exclusive knowledge of the authorities, and that the first applicant’s version of events has been consistent and plausible as far as essential elements are concerned and that the Government have failed to submit sufficient information or evidence calling into question the first applicant’s version of events, the Court must thus accept the first applicant’s account of events and concludes that he was subjected to ill-treatment when detained on the premises of the MNS between 2 and 17 February 2007.

117. As to the seriousness of the act of ill-treatment, the Court considers that the first applicant’s ill‑treatment must have caused him physical pain and suffering. The ill-treatment in question and its consequences must have also caused the first applicant considerable mental suffering, diminishing his human dignity. In these circumstances, the Court considers that the ill-treatment complained of was sufficiently serious to attain a minimum level of severity falling within the scope of Article 3 and to be considered as inhuman and degrading treatment.

148. In that connection, the Court notes that, although the investigation established that the first applicant had been tardily transferred to the medical facility, the two expert reports on which the prosecuting authorities’ decision was based concerned only the cause of the death and the first applicant’s medical treatment following his transfer to the medical facility on 28 July 2009, and did not concern the consequences of his tardy transfer to the medical facility (see paragraphs 66 and 70 above). The latter question was not addressed by the expert reports.

149. The Court also notes that, although it had been established during the investigation that the first applicant had refused to be transferred to the medical facility, the prosecuting authorities failed to examine the circumstances surrounding his refusals. Furthermore, they failed to clarify if there was a causal link between the first applicant’s placement in a punishment cell found to be illegal by the Nizami District Court and his death as alleged by the second and third applicants (see paragraph 67 above).

150. The Court further observes that the prosecuting authorities failed to inform the second and third applicants of the progress of the investigation and to involve them in the investigation by providing them in a timely manner with the relevant decisions taken within the framework of the criminal proceedings. In particular, it appears from the documents in the case file that they obtained a copy of the expert reports carried out during the investigation for the first time in the court proceedings instituted against the prosecuting authorities’ decision (see paragraph 72 above).

151. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the first applicant. It accordingly holds that there has been a violation of Article 2 under its procedural limb.