Violence Against Speakers / Impunity
Restrepo Barrientos v. El Colombiano Newspaper
Closed Expands Expression
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In the case of Najafli v. Azerbaijan, the First Section of the European Court of Human Rights (ECtHR) unanimously held that Azerbaijan violated the rights of Mr Ramiz Huseyn oglu Najafli, a journalist, under Article 3 (prohibition of inhuman and degrading treatment) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). Najafli and five of his colleagues had been severely beaten up by the police while they were reporting on an unauthorised political demonstration in Baku. Not only the ill-treatment itself, but also the authorities’ subsequent failure to carry out an effective criminal investigation into the incident, resulted in a breach of Article 3 ECHR. Additionally, the fact that Najafli was not a participant in the demonstration but a professional journalist exercising his task of imparting information and ideas on matters of public interest, led the Court to conclude that there had been a breach of Article 10 ECHR.
The applicant, Mr Ramiz Huseyn oglu Najafli, was an Azerbaijani journalist and editor-in-chief of the newspaper Boz Ourd. On 9 October 2005, Najafli and five other journalists went to report on an unauthorised demonstration in Baku which was organised by a number of opposition parties. At some point, the police forcibly dispersed the demonstration and started to beat up members of the crowd, including the journalists. Although Najafli was not wearing a special blue vest identifying him as a journalist, he was wearing a journalist badge on his chest and repeatedly told the police officers that he was a journalist. Nevertheless, the State agents kept beating him and eventually hit him unconscious. According to his medical certificate, Najafli was diagnosed afterwards with closed cranio-cerebral trauma, concussion, and soft-tissue damage to the crown of the head, for which he needed long-term treatment.
On 9 November 2005, the Sabail District Police Department, and later the Sabail District Prosecutor’s Office, instituted a criminal investigation into the incident. During his questioning on 12 January 2006, Najafli submitted a photo of the Baku’s Head of Riot Police (“A.V.”), who had been present at the scene of the beating. A.V., however, denied his involvement. On 28 January 2006, the investigator of the Sabail District Prosecutor’s Office ordered a forensic examination of Najafli, which in fact never took place as Najafli claimed that he had not been informed about this decision.
On 9 March 2006, the investigator suspended the investigation on the ground that the perpetrators of the violence could not be identified. Najafli was (again) not informed about this decision until May 2006. On 12 May 2006, Najafli lodged a complaint with the Sabail District Court about the lack of information about the suspension. The complaint and the following appeal were both dismissed on the ground that the decision suspending the investigation had been lawful.
On 9 November 2006, Najafli lodged a separate civil action against the Ministry of Internal Affairs to seek compensation for damages caused by the beating in November 2005. The claim was rejected for formal reasons, such as Najafli’s failure to identify specific individuals as defendants. Both the Court of Appeal and the Supreme Court upheld the decision.
On 12 December 2006, Najafli lodged an application against the Republic of Azerbaijan with the European Court of Human Rights (ECtHR) under Article 34 of the European Convention on Human Rights (ECHR). He complained “that he had been beaten up by police and that the domestic authorities had failed to carry out an effective investigation capable of identifying and punishing the police offers responsible” [para. 30], which amounted to a violation of Article 3 ECHR (prohibition of inhuman and degrading treatment). Najafli further alleged that “he had been ill-treated by police with the aim of preventing him from carrying out his journalistic activity” [para. 57], which violated his rights under Article 10 ECHR (freedom of expression). Lastly, Najafli complained that “the domestic courts’ refusal to admit his civil action had been wrongly substantiated and breached his right of access to court” [para. 71], which resulted in a violation of Article 6 ECHR (fair trial).
The First Section of the ECtHR (hereafter: “the Court”) delivered the unanimous judgment. The main questions before the Court were whether the Azerbaijani authorities had violated Article 3 and Article 10 ECHR.
With regard to Najafli’s complaint under Article 3, the Court considered two aspects of the legal prohibition of inhuman and degrading treatment, that is, (a) the alleged ill-treatment by the police itself (substantive), and (b) the criminal investigation into the allegations of the ill-treatment (procedural).
Relying on a medical certificate, the photo of A.V. taken at the demonstration and the witness statements from two journalists, Najafli argued that he had been beaten up by police officers led by A.V. and that the officers had used excessive force against him without any justification. The Azerbaijani government submitted that Najafli lacked evidence for his claim since there was no court decision in this respect, and that the police were entitled to use force to disperse an unlawful demonstration.
Citing Ireland v. the United Kingdom, no. 5310/7, 18 January 1978, Kudla v. Poland, no. 30210/96, 26 October 2000 and Peers v. Greece, no. 28524/95, 19 April 2001, the Court noted that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3” [para. 34]. The standard to be applied in assessing evidence is that there is proof “beyond reasonable doubt” that ill-treatment of such severity occurred [para. 36] (see Avşar v. Turkey, no. 25657/94, 10 July 2001). In this case, the Court found that Najafli had produced “sufficiently strong and consistent evidence to establish at least a presumption that the applicant was beaten with truncheons by police offers during the dispersal of the demonstration”, and that the Azerbaijani government had not provided a “convincing rebuttal of this presumption” [para. 37]. With regard to the excessiveness of the ill-treatment, the Court considered that “recourse to physical force which has not been made strictly necessary by the person’s own conduct is in principle an infringement of the right set forth in Article 3 of the Convention” (see Kop v. Turkey, no. 12728/05, 20 October 2009 and Timtik v. Turkey, no. 12503/06, 9 November 2010) [para. 38]. The Court observed that Najafli had not used violence against the police, nor had he posed a threat to them, which rendered the physical force against him “unnecessary, excessive and unacceptable” [para. 39]. Taking into account Najafli’s serious physical pain and mental suffering as a result of the beating, the Court concluded that the ill-treatment had been sufficiently serious to attain a minimum level of severity and that there had been a violation of Najafli’s substantive rights under Article 3 ECHR [para. 40-41].
Najafli further argued that the Azerbaijani authorities had failed to carry out an effective investigation into his allegations of ill-treatment, since they had ignored all the evidence and had not informed him of any of the decisions made by the investigator. The Azerbaijani government, on the other hand, submitted that the authorities had in fact conducted an effective investigation, since the investigator had instituted criminal proceedings after Najafli’s complaint; had heard Najafli, A.V. and two witnesses; had taken all appropriate actions to identify those who had beaten the journalists; and had ordered a forensic examination.
Referring to Article 1 ECHR, the Court reiterated that Article 3 by implication requires that there should be an effective official investigation – which should be “capable of leading to the identification and punishment of those responsible” – as to make the prohibition of inhuman and degrading treatment effective in practice (see Assenov and Others v. Bulgaria, 28 October 1998 and Labita v. Italy, no. 26772/95, 6 April 2000) [para. 45]. Such an investigation must be “independent and impartial, in law and in practice” (see Boicenco v. Moldova, no. 41088/05, 11 July 2006, Kolevi v. Bulgaria, no. 1108/02, 5 November 2009, and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, 24 June 2010) [para. 46] and “thorough” (see Assenov and Others v. Bulgaria, Tanrikulu v. Turkey, no. 23763/94, 8 July 1999 and Gül v. Turkey, no. 2267/93, 14 December 2000) [para. 47]. The complainant must have effective access to the investigation procedure [para. 48].
In applying these principles to the present case, the Court found that the investigation of Najafli’s allegations of ill-treatment had fallen short for numerous reasons. First, there had been significant procedural delays (3 months) and serious doubts whether Najafli had always been given effective access to the investigation procedure and whether he had been informed of all procedural steps in a timely manner. Furthermore, and most importantly, the investigation had not been independent and impartial: the investigator had delegated the task of identifying those who had ill-treated the applicant to the same authority whose agents had allegedly committed the offence. In other words, colleagues were investigating colleagues (compare Ramsahai and Others v. the Netherlands, no. 52391/99, 15 May 2007, Aktas v. Turkey, no. 24351/94, 24 April 2003, and McKerr v. the United Kingdom, no. 28883/95, 4 April 2000) [para. 52]. Additionally, the investigator had not taken independent, tangible, and effective investigative measures aimed at identifying the culprits, but had instead merely suspended the proceedings, relying on the “no result” report of the police department [para. 54]. Finally, Najafli had been deprived of the opportunity to effectively seek damages in civil proceedings due to formal requirements which the Court deemed to be “insurmountable obstacles” [para. 55]. Taking all the shortcomings together, the Court concluded that there had been a violation of Najafli’s procedural rights under Article 3 ECHR [para. 56].
The Azerbaijani government submitted that Najafli had failed to exhaust domestic remedies and that he could have remedied his non-compliance with the formal requirements. Najafli argued that he had lodged the civil claim properly. The Court repeated its considerations under Article 3 ECHR (“insurmountable obstacles”) and decided that Najafli had done all that could have been expected of him to exhaust domestic remedies.
According to the Azerbaijani government, Najafli had not been wearing a special blue vest identifying him as a journalist during the demonstration, which had led the police officers to think he was a participant in the demonstration against whom they were entitled to use force. Najafli, on the contrary, submitted that he had been wearing a journalist badge on his chest and had repeatedly told the officers that he was a journalist.
Citing Castells v. Spain, no. 1798/85, 23 April 1992, Thorgeir Thorgeirson v. Iceland, no. 13778/88, 25 June 1992, Goodwin v. the United Kingdom, no. 17488/90, 27 March 1996, Jersild v. Denmark, no. 15890/89, 23 September 1993, Fatullayev v. Azerbaijan, no. 40984/07, 22 April 2010, Observer and Guardian v. the United Kingdom, no. 13585/88, 26 November 1991 and The Sunday Times v. the United Kingdom (no. 2), no. 13166/87, 26 November 1991, the Court stressed the vital role of the press as a “public watchdog”. It is incumbent on the press to impart information and ideas on matters of public interest – including opposition gatherings and demonstrations – which the public has a right to receive [para. 66]. The Court also stated that “public measures preventing journalists from doing their work may raise issues under Article 10” (see Gsell v. Switzerland, no. 2675/05, 8 October 2009) [para. 67].
The Court could not accept the government’s argument that police officers had been unable to determine that Najafli was a journalist, since he had been wearing a badge and had specifically told the police officers he was a journalist. By using excessive force, even after they must have become aware that they were engaging with journalists, the police had prevented Najafli and his colleagues from doing their work, thus hampering the exercise of their right to receive and impart information [para. 67-68]. According to the Court, such interference with freedom of expression rights could not be justified under paragraph 2 of Article 10, as it had not been shown convincingly that it was either lawful or pursued any legitimate aim. And even if that had been the case, the interference could in any event not be considered as “necessary in a democratic society” [para. 69]. The Court thus concluded that there had been a violation of Article 10 ECHR.
With regard to Najafli’s complaint under Article 6 ECHR, the Court briefly noted that it had already examined essentially the same matters under the procedural aspect of Article 3 ECHR, which rendered an examination of potential issues under Article 6 unnecessary.
In conclusion, the Court unanimously held that there had been a violation of Najafli’s substantive and procedural rights under Article 3 ECHR and of his rights under Article 10 ECHR. It ordered the Republic of Azerbaijan to pay Najafli EUR 10,000 in respect of non-pecuniary damages and EUR 3,000 in respect of costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression, because it adheres to principles and standards developed in previous case law as extensively cited by the Court throughout the judgment. Not only did the Court highlight the need for independent and impartial criminal investigations in a general sense [para. 52], it also underlined the importance of safe journalistic reporting on (opposition) gatherings and demonstrations [para. 66] with the assurance that violence against journalists will be punished.
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