Public Order, Violence against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
Closed Expands Expression
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The European Court of Human Rights held that Azerbaijan violated the prohibition on inhuman or degrading treatment, the right to liberty and security, as well as the right to freedom of assembly and association of Emin Huseynov, an independent journalist. Huseynov had been detained by the police when he identified himself as a journalist during the dispersal of a small gathering held at a privately owned café. On the way to the police station and at the station, Huseynov was threatened and beaten. Criminal and civil actions that he brought against the police were not successful at the national level.
Emin Huseynov is an independent journalist based in Azerbaijan. On June 14, 2008, he attended a small event organized by the “Che Gueavara Fan Club” at a privately owned café in Baku to celebrate the 80th anniversary of Che Guevara’s birth. About thirty minutes into the event, around thirty police officers showed up to disperse the event. Huseynov identified himself as a journalist and showed the officers his press ID; he also notified his press agency about the police intervention. In response, one police officer ordered Huseynov to be taken to a police station.
Huseynov was placed in a car and on the way to the police station officers punched and kicked him. At the station, he was further threatened and beaten to the point of losing consciousness. As a result, he was hospitalized. At the hospital, Huseynov was diagnosed to have suffered a traumatic brain injury and contusion of the soft tissues on his neck.
Due to the hospitalization, a criminal inquiry was launched as to its causes. On June 15, 2008, Huseynov was questioned in the hospital by a police investigator. Huseynov explained to the investigator that he had been threatened and beaten by the police, and that this had resulted in his hospitalization. On June 17, 2008, while the investigation was still pending, the spokesperson for the Ministry of Internal Affairs made a public statement in which he explained that an unauthorized gathering was dispersed by the police and that twenty people, including Huseynov, had been arrested. The spokesperson further stated that Huseynov complained that he did not feel well and that he had lost consciousness because of high blood pressure. On June 18, 2008, Huseynov was examined by a forensic expert. The forensic report stated that Huseynov had no injuries on his body and was in good health. Huseynov did not receive a copy of the report. On June 27, 2008, the police suspended the investigation into allegations of Huseynov’s mistreatment on the basis of the forensic report. Huseynov was not notified of this decision.
On March 16, 2009, Huseynov lodged a criminal complaint alleging ill-treatment by the police during his arrest and detention. He also complained that the authorities had failed to conduct a proper investigation into his allegation of ill-treatment. On March 31, 2009, a court of first instance dismissed the complaint on the grounds that a forensic exam from June 18, 2008, did not identify any physical signs of abuse. This judgment was upheld on appeal.
Huseynov also launched a civil action against the district police office where he had been detained. A court of first instance refused to admit his complaint. The decision was upheld by the Baku Court of Appeal. However, the Supreme Court quashed the appellate decision and remitted the case to the lower courts for a new examination. The lower courts conducted a new investigation and dismissed the case on the grounds that his arrest had been lawful.
Huseynov then filed a complaint with the European Court of Human Rights, alleging violations of Article 3 (prohibition of inhuman or degrading treatment), Article 5 (the right to liberty and security), Article 10 (freedom of expression) and Article 11 (freedom of assembly and association).
The Court considered the alleged violations of each of the articles in turn.
The Court reviewed the complaint that Huseynov had suffered inhuman or degrading treatment on the basis of the ill-treatment he had suffered and the government’s failure to conduct a proper investigation. The Court began by stressing that even in the most difficult circumstances, such as the fight against terrorism and organized crime, torture and inhuman or degrading treatment is absolutely prohibited. The Court then defined inhuman treatment to constitute treatment that was “premeditated, applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering.” [para 55] The Court defined degrading treatment as one that aroused in “the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them.” [para 55]
The Court then declared that “[w]here an individual, when taken in police custody, is in good health, but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which a clear issue arises under Article 3 of the Convention.” [para 56] The “beyond reasonable doubt” standard of proof is applied in such cases.
Looking at the evidence, the Court pointed out inconsistencies in the forensic report. First, the report did not explain the reasons for why the forensic examination took place several days after Huseynov’s hospitalization. Second, the report did not comment on the diagnosis of brain injury and contusion on the neck that Huseynov received at the time of his admittance to the hospital. Third, the report did not comment on the allegations of the events that led to Huseynov’s hospitalization. Therefore, the Court found a violation of Article 3 on the basis of inconsistencies in the forensic report, supporting evidence that Huseynov was ill-treated by the police, and evidence that he experienced considerable mental suffering.
The Court also found a violation of Article 3 on the grounds that Azerbaijan’s authorities failed to conduct a proper investigation into the allegations of ill-treatment. The Court stressed that an effective investigation must be independent and impartial and that the government must take all steps reasonably available to them in conducting such investigations. The Court highlighted that the “degree of public scrutiny required may well vary from case to case. In all cases, however, the complainant must be afforded effective access to the investigatory procedure.” [para 72]
Here, the Court determined that the investigation had not been impartial because the investigation was conducted by an officer from the police station where Huseynov had suffered the alleged ill-treatment. Secondly, the authorities failed to inform Huseynov about the progress of the investigation, not even providing him with a copy of the forensic report, or a notification of the investigation’s closure and outcome.
The Court went on to examine the complaint that Huseynov’s right to liberty, as protected under Article 5 of the Convention, had been violated. The Court emphasized that even a brief deprivation of liberty may constitute a violation of Article 5. The Court established that “in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned, and account must be taken of a whole range of factors arising in a specific case, such as the type, duration, effects and manner of implementation of the measure in question.” [para.81]
Here, the Court found that there “was an element of coercion which was indicative of a deprivation of liberty within the meaning of Article 5.” Furthermore, Huseynov was deprived of liberty for over three hours, which the Court found was of sufficient length to qualify as a deprivation of liberty. The Court then looked at whether Huseynov had been deprived of his liberty arbitrarily. The Court emphasized that “compliance with national law is not sufficient” in determination of legitimacy of detention; an additional review of the right to security of persons needs to be undertaken. [para. 84] The Court determined that there was no evidence whatsoever that Huseynov was suspected of having committed a crime or that his arrest had been necessary to prevent a crime. Furthermore, the Court contested the government’s claim that Huseynov was detained because he had failed to produce identity documents, referring to witness testimony which spoke to the contrary. Therefore, the Court concluded that Huseynov had been deprived of his liberty unlawfully and arbitrarily, in violation of Article 5 of the European Convention of Human Rights.
The Court went on to consider the alleged violations of Huseynov’s rights to freedom of assembly and freedom of expression. It ruled that although Huseynov was an independent journalists and the chairman of a media organization, it was impossible to establish whether he participated in the June 14, 2008, event in his capacity as a journalist. Therefore, the Court held that Huseynov’s complaint should be reviewed solely for violations of Article 11, concerning the right to public assembly.
The Court established that “an interference will constitute a breach of Article 11 unless it is ‘prescribed by law,’ pursues one or more legitimate aims under paragraph 2, and is ‘necessary in a democratic society’ for the achievement of those aims.” [para. 96] The Court also equated the right to public assembly to the right to freedom of expression in that they both constitute foundations of a democratic society. Thus, “States must not only safeguard the right to assemble peacefully, but must also refrain from applying unreasonable indirect restrictions upon that right.” [para. 97]
The Court observed that the national authorities had had no basis in national law for dismissing the event, which had been held on private property. The government had claimed that the event had been dispersed because of a citizen’s complaint, but no evidence of this complaint was submitted to the Court. On these grounds, the Court concluded that “the interference which constituted the dispersal of a peaceful gathering in a private property was not ‘prescribed by law’” and violated Article 11.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment holds the Azerbaijani government to account for arbitrarily detaining and physically abusing a person solely on the basis that he identified himself as a journalist. The decision is a strike against impunity for violence against journalists.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding on the State against which the case has been taken, and constitute a persuasive interpretation of the meaning of Convention rights for other state parties.
Judgments of the European Court of Human Rights are influential outside Europe and are frequently referred to by other human rights courts or national courts of appeal.
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