Violations caused by failure to provide the victim with a decision on rejection of the initiation of criminal proceedings

Analysis

The wife of political prisoner Polad Aslanov remarked that she and her lawyer are not being given a copy of the decision (presumably the decision to reject the initiation of a criminal proceedings – ed.) regarding the torture that Aslanov was subjected to in the Baku Pre-Trial Detention Center: “In all cases, they do not issue decisions to terminate the case so that Polad cannot appeal the decision to the local and European courts. Polad is being deprived of the right to self-defense”.

In the face of similar widespread cases in the practice of law-enforcement bodies, “Tribunat” has analyzed the issue.

The Criminal Code of Azerbaijan penalizes torture committed by an official of a state body, or at his instigation or consent, or by other persons with his knowledge (Article 293).

The Law “On Ensuring the Rights and Freedoms of Detainees in Places of Detention” stipulates that complaints about ill-treatment of detainees must be immediately sent to the prosecutor who is conducting the procedural management of the preliminary investigation (Article 22.3).

The individual, own defense counsel, legal representative, and other individuals whose rights and freedoms have been violated have the right to file a complaint with the court regarding torture (Code of Criminal Procedure, Articles 449.3, 44.3.4).

According to the requirements of the aforementioned Code, if there are no grounds for initiating a criminal case, the detective, investigator or prosecutor shall refuse to initiate a criminal case and shall send a copy of this decision to the applicant within 24 hours. This decision can be appealed to a higher prosecutor or court (Articles 212.1-212.3).

As observed, according to the requirements of domestic legislation, the decision to refuse to initiate criminal proceedings should be sent immediately after its adoption, including to the individual applying. Nonetheless, in many cases this requirement is not implemented in reality, or is not sent, or is sent after a long time after numerous applications and complaints. Resultantly, the victim or the individuals whose interests have been affected faces problems in appealing that decision.

Although Article 3 of the European Convention on Human Rights imposes more negative obligations on the state, it also requires the establishment of a normative framework that protects individuals under this article and the taking of operational measures to protect specific individuals from the risk of treatment contrary to that article. Hence, it also imposes positive obligations, including the obligation to conduct an effective investigation into possible allegations of ill-treatment (Guide on Article 3 of the ECHR, §§3-4).

In accordance with these obligations, if an individual puts forward a “probable allegation” that he or she has been subjected to torture, an effective official investigation must be conducted into such an allegation (§§119, 121). The effectiveness of the investigation is measured by the adequacy of the investigative measures, the promptness of the investigation, the participation of the victim in the investigation and the independence of the investigation (R.R. and R.D. v. Slovakia, §178).

Promptness of the investigation implies proceedings at a reasonable pace (§138).

In Barovov v. Russia, the European Court of Human Rights (ECtHR) found that the nearly 12-year investigation into a torture case constituted a procedural violation of Article 3 (§46).

In Mammadov (Jalaloglu) v. Azerbaijan (§79), Muradova v. Azerbaijan (§136), and Najafli v. Azerbaijan (§56), the ECtHR also recognized the Government’s failure to conduct an effective, independent and prompt investigation into the applicants' well-founded allegation of being subjected to violence as a procedural violation of Article 3.

In Huseynova v. Azerbaijan, the Court noted that the victim’s relatives may participate in the investigation process to the extent that their legitimate interests are protected (§106). The ECtHR indicated that, despite the fact that the wife of the murdered journalist Elmar Huseynov was granted the status of “victim” in the investigation, the investigative authorities consistently denied her access to the case files during the investigation. The Court rejected the investigative authorities’ reliance on domestic law to justify that situation and fact that it was unacceptable under domestic law that Huseynova had no access to the case file at all during the investigation. This situation deprived her of the opportunity to defend her legitimate interests and prevented public overview of the investigation (§113).

In Tagiyeva v. Azerbaijan, Maila Tagiyeva, the wife of murdered writer Rafig Tagi, repeatedly requested access to relevant documents related to the ongoing criminal investigation, but requests stayed either unanswered or rejected. The Court stated that this deprived M. Tagiyeva of the opportunity to defend her legitimate interests and prevented the investigation from being open to public scrutiny (§73).

The Court also declared in Shuriyya Zeynalov v. Azerbaijan (§86) that the lack of access to investigation materials by the victim's relatives was unacceptable and that this situation deprived individuals of the opportunity to defend their legitimate interests. The Court stressed that the prosecutor's office had not provided Zeynalov with the relevant decisions taken in the criminal proceedings at any stage of the domestic judicial proceedings and had not informed her about the progress and outcome of the investigation. In particular, S. Zeynalov was unable to obtain copies of the forensic medical examination report and the decision to refuse to initiate criminal proceedings. The ECtHR considered this to be a deprivation of his opportunity to defend his legitimate interests and an obstacle to public scrutiny of the investigation (§86).

In the context of the cited decisions, it should be emphasized that the failure to provide Polad Aslanov or his defense attorney with a copy of the prosecutor's decision on the ill-treatment of the accused prevents him from filing a complaint to the court challenging the decision. Since if a copy of the contested decision is not attached to a complaint filed under the procedure of judicial review, the court refuses to consider the complaint and reverts the document.

In other words, the failure to provide Polad Aslanov and his lawyer with a copy of the decision deprived him of the opportunity to defend his legitimate interests. As the court stated, the complete exclusion of the victim or his legal representative from access to the investigation materials violates the transparency of the investigation, makes public control impossible and prevents the individual from effectively defending his rights. In this regard, what happened to P. Aslanov contradicts the legal standards formulated by the ECtHR and seriously limits his opportunities to protect his rights.

“Tribunat” concludes that the failure to provide copies of the decisions of the prosecutor's office and other investigative bodies regarding Polad Aslanov to his lawyer or himself harms the promptness of the investigation and paves the way to a procedural violation of Article 3 of the ECHR.