MUSTAFAYEV v. AZERBAIJAN - 47095/09 (Judgment : Violation of Article 2 - Right to life (Article 2 - Positive obligations Article 2-1 - Life) (Substantive aspect) Violation o...) [2017] ECHR 404 (04 May 2017)

In the case of Mustafayev vAzerbaijan,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits,
          Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 4 April 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 47095/09) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Mr Zeynal Zeynal oglu Mustafayev (Zeynal Zeynal oğlu Mustafayev - “the applicant”), on 20 August 2009.

2. The applicant was represented by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

3. The applicant alleged, in particular, that the State had failed to protect his son’s life while the son was in prison and that there had been no effective investigation into his son’s death.

4. On 22 January 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1937 and lives in Sumgayit.

6. The applicant’s son, Mahir Mustafayev (M.M.), was born in 1967 and at the time of the events was serving a life sentence in Gobustan Prison.

A. Death of the applicant’s son

7. The applicant’s son, who suffered from epilepsy, was held with one other inmate (S.R.) in cell no. 94, designated for two inmates.

8. Since June 2006 M.M. had sent numerous complaints to various domestic authorities, including the Ministry of Justice, the Prosecutor General’s Office and the Ombudsman of the Republic of Azerbaijan. He complained, in particular, of his conditions of detention, of violations of inmates’ rights in Gobustan Prison and of ill-treatment by prison guards because of his complaints to various domestic authorities, alleging that his life was in danger.

9. On 2 December 2006 S.R. left cell no. 94 for a long-term visit to his mother and M.M. remained the sole occupant of the cell.

10. Early in the morning of 3 December 2006 a fire broke out in the cell. According to the applicant, the fire began at approximately 6 a.m. and prison guards did not immediately intervene to extinguish it despite warnings from other inmates. It took an hour for them to open the cell door after the outbreak of the fire.

11. According to the Government, the fire broke out at approximately 6.50 a.m. The prison guards took immediate action and opened the cell door at around 7 a.m. They took the applicant’s son out of the cell and gave him first aid. M.M. was sent to hospital by car at 11.45 a.m., arrived at 2.45 p.m. and died at 3.30 p.m.

12. The applicant was informed by telegram at 3.21 p.m. on 6 December 2006 of the death of his son.

13. It appears from M.M.’s death certificate, dated 13 March 2007, that the cause of death was first and second degree burns over the whole body and smoke inhalation (bütün bədənin texniki yanığı, I-II dərəcəli yanıq, intoksikasiya).

B. The criminal inquiry

14. On 4 December 2006 the Garadagh District Prosecutor’s Office launched a criminal inquiry into M.M.’s death.

15. On 7 December 2006 the investigator in charge of the case refused to institute criminal proceedings. The investigator found that M.M. had suffered from epilepsy and that the fire had begun after his cigarette had fallen onto the bed during a seizure. The investigator relied on a statement written by M.M. after the incident, which stated that the fire had broken out because he had had an epileptic seizure while smoking. The investigator found that the prison guards had acted immediately in order to extinguish the fire. The investigator also referred to a statement from S.R. that he had seen M.M. after the incident, at approximately 10 a.m. on 3 December 2006, and that M.M. had told him that he had had a seizure and that he had not known how the incident had happened. The investigator’s decision also referred to post-mortem forensic report no. 147 dated 5 December 2006, which confirmed the existence of extensive burns on M.M.’s body. The forensic report also established that the time of the injuries corresponded to 3 December 2006 and that they were the kind of injuries which caused serious harm and could be life-threatening.

16. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of M.M. and S.R.’s written statements of 3 December 2006 and forensic report no. 147 of 5 December 2006, submitting that the case file had been destroyed.

17. The applicant was provided with a copy of the investigator’s decision of 7 December 2006 only one month later. He immediately lodged a complaint against that decision with a superior prosecutor.

18. On 16 February 2007 the Baku City Prosecutor overturned the investigator’s decision and remitted the case to the Garadagh District Prosecutor’s Office for a new examination. The prosecutor held that the investigator had not duly examined the scene of the incident. He also asked the investigator, inter alia, to order forensic fire, chemical and handwriting examinations, to check if M.M.’s cell had been equipped with an adequate fire detection system, to question other inmates, prison guards, and the medical staff who had given first aid to M.M. and to establish why M.M. had not been taken to hospital immediately after the incident. The prosecutor also asked the investigator to order a new forensic examination in order to establish, inter alia, whether M.M. had been able to speak and move freely immediately after the incident given the nature of his injuries.

19. On 26 April 2007 the investigator again refused to institute criminal proceedings, concluding that there had been no crime involved in M.M.’s death. He relied mainly on the statements submitted by the prison guards, who said the fire had broken out at approximately 7 a.m. because of M.M.’s epileptic seizure and that they had intervened immediately after the incident. The investigator also noted that handwriting report no. 2692 dated 6 April 2007 had indicated that the statement written on 3 December 2006 had been signed by M.M. However, he also noted in the decision that forensic expert report no. 32 dated 25 April 2007 had stated that M.M. had not been able to move, speak or write immediately after the incident as he had been in a state of shock as a result of his burns. The decision also recorded that chemical analysis report no. 2375 of 19 March 2007 had concluded that there had been no trace of oil products in samples taken from the cell walls or of carbonised particles. The investigator also pointed out that it was not possible to carry out a forensic fire examination because the scene of the incident had not been preserved and repairs had been carried out in the cell in question. As regards the statements by some inmates that the fire had broken out at approximately 6 a.m., that it had taken an hour for the prison guards to open the door of the cell and that M.M. had died as a result of their negligence, the investigator noted that the cells of the inmates in question were situated far from M.M.’s cell and that therefore their statements could not be considered as reliable. The investigator also questioned Gobustan Prison’s paramedic (feldşer) (N.B.) who had given first aid to M.M. after the fire. N.B. stated that he had been informed by telephone at home about the incident at around 7 a.m. on 3 December 2006. He had taken a taxi to the prison and had arrived fifteen minutes later. He had given first aid to M.M. but his condition had worsened at around 8 a.m. and he had requested his transfer to a hospital. N.B. stated that he had accompanied M.M. in the car that had transported him to the hospital but they had not arrived until 2.45 p.m. because they had waited for an hour and fifteen minutes for the car to be repaired after it had broken down. In that connection, the investigator referred to letter no. 17/1/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice, confirming that the car transporting M.M. to the hospital had arrived at 2.45 p.m. and that the delay in his transfer had been due to the fact that the car had broken down on its way to the hospital. The letter also contained information about M.M.’s medical history, pointing out that he had previously been admitted five times to that medical establishment, had been diagnosed four times with epilepsy and had received the appropriate treatment.

20. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of chemical analysis report no. 2375 dated 19 March 2007, handwriting report no. 2692 dated 6 April 2007, forensic expert report no. 32 dated 25 April 2007, letter no. 17/1/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice and the statements made by the prison guards, medical staff and inmates detained in Gobustan Prison, submitting that the case file had been destroyed.

21. The applicant lodged a complaint against the investigator’s decision with the Garadagh District Court, complaining that he had failed to carry out an effective investigation.

22. On 4 July 2007 the Garadagh District Court dismissed the applicant’s complaint.

23. On an unspecified date the applicant lodged an appeal against that decision. He complained, in particular, of the inconsistency between the conclusions of the handwriting report dated 6 April 2007 and the forensic expert opinion dated 25 April 2007. He also argued that the investigator and the first-instance court had failed to examine photographs of M.M. taken immediately after the incident on 3 December 2006. He submitted that the photographs showed that M.M.’s body had signs of ill-treatment.

24. On 27 July 2007 the Baku Court of Appeal granted the appeal and remitted the case to the prosecuting authorities for fresh examination. The appellate court held that the prosecuting authorities had failed to examine the photographs of M.M. for signs of ill-treatment on his body or to establish why the scene of the incident had not been preserved.

25. On 15 October 2007 a prosecutor at the Garadagh District Prosecutor’s Office again refused to institute criminal proceedings on the grounds of a lack of a criminal element in the death. In particular, the prosecutor held that there was no evidence that M.M. had been ill-treated, as alleged by the applicant. He relied in that connection on the conclusions of forensic report no. 147, which had only confirmed the existence of numerous burns on M.M.’s body.

26. On an unspecified date the applicant appealed against that decision.

27. On 6 December 2007 the Garadagh District Court overruled the prosecutor’s decision and remitted the case to the prosecuting authorities for a new examination. The court pointed out the inconsistencies as to when the fire had begun. It further held that the investigation had failed to clarify why M.M. had been taken to hospital almost eight hours after the fire had broken out. The court held that the fact that the car transporting M.M. had broken down could not explain such a long delay. The court also found that the investigation had failed to examine whether M.M.’s conditions of detention had been appropriate for a person suffering from epilepsy.

28. On 7 January 2008 the investigator in charge of the case again refused to institute criminal proceedings. The wording of the decision was identical to that of 26 April 2007, except the last few paragraphs, which concerned the conditions of detention of inmates suffering from epilepsy. In that connection, relying on statements made by the head of the prison regime department of Gobustan Prison and N.B., the investigator found that domestic law did not provide for any special conditions of detention for inmates suffering from epilepsy or any restriction on the authorised items they could possess in prison.

29. On 14 March 2008 the Garadagh District Court overruled the investigator’s decision of 7 January 2008 and remitted the case to the prosecuting authorities. The court held that the investigator had failed to examine the reason for the delay in M.M.’s transfer to hospital. It also pointed out the inconsistencies in the inmates’ statements concerning the circumstances of the incident. The court further found that it had not been established whether M.M.’s conditions of detention had been compatible with his illness and that an inquiry should have been carried out as regards the necessary security and medical measures for a person like M.M., whose condition was likely to give rise to sudden seizures.

30. On 7 May 2008 a prosecutor at the Garadagh District Prosecutor’s Office again refused to institute criminal proceedings, using wording that was almost identical to the decisions of 26 April 2007 and 7 January 2008. The prosecutor found that it had been M.M.’s fault that the fire had broken out and that he had died as a result of his burns. He further held that the prison guards had taken immediate action and there had been no negligence on their part. The prosecutor noted that there was no special rule for the detention of inmates suffering from epilepsy. He also confirmed that there had been a delay in taking M.M. to hospital because the car had broken down. He further found that it had not been possible to carry out a forensic fire examination as the scene of the incident had not been preserved. Lastly, the prosecutor referred to a statement made by a forensic expert, A.M., that there had been no causal link between M.M.’s death and his delayed transfer to hospital.

31. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of A.M.’s statement, submitting that the case file had been destroyed.

32. The applicant was provided with a copy of that decision only on 26 December 2008, following intervention by the Ombudsman.

33. On an unspecified date the applicant lodged a complaint against the prosecutor’s decision of 7 May 2008, arguing that the prosecuting authorities had failed to investigate the questions raised by the previous court decisions. In particular, there had been no plausible explanation for M.M. not being taken immediately to hospital after the incident. He also disputed the official version, according to which M.M. had been able to write a statement immediately after the incident and that he had caused the fire himself.

34. On 12 February 2009 the Garadagh District Court dismissed the applicant’s complaint. The judge held that all the facts of the case had been examined by the prosecuting authorities and that M.M. had died as a result of an accidental fire.

35. On 6 March 2009 the applicant appealed against that decision, arguing that there had not been an effective investigation into his son’s death in prison. He argued that the wording of the prosecutor’s decision of 7 May 2008 had been almost identical to the prosecuting authorities’ previous decisions and that it had not dealt with any of the questions raised by the previous court decisions.

36. On 22 May 2009 the Baku Court of Appeal dismissed the applicant’s appeal, finding that there was no reason to overrule the first-instance court’s decision of 12 February 2009.

II. RELEVANT DOMESTIC LAW

37. In accordance with Article 87 § 6 of the Code of Criminal Procedure of Azerbaijan (“the CCrP”), a person recognised as a victim has various procedural rights and is entitled to submit material to the criminal case file, object to actions of the criminal prosecuting authority, lodge applications, have access to transcripts and documents in the case file, be informed and obtain copies of any procedural decision by the criminal prosecuting authority affecting his rights and interests (including a decision to refuse to institute criminal proceedings), and to lodge appeals against procedural steps or decisions.

38. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings may challenge the actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge such actions or decisions, including a refusal by the prosecuting authorities to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). That decision is amenable to appeal in accordance with the procedure established in Articles 452 and 453 of the CCrP.

III. RELEVANT INTERNATIONAL DOCUMENTS

39. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) has carried out several visits to Azerbaijan in which it had the opportunity to examine the situation in Gobustan Prison. In particular, the main purpose of the CPT’s visit of May 2005 (ad hoc) was to examine the situation in Gobustan Prison. However, the CPT’s report on the latter visit has not been made public. The last report of the CPT concerning Azerbaijan which has been made public is about its visit in December 2008. The relevant part of the Report reads as follows:

“5. Health care

a. Gobustan Prison

30. Health-care staffing levels remained generally satisfactory as regards doctors (a Head doctor, a specialist in internal diseases, a specialist in pulmonary diseases and a dentist). Further, a psychologist and a laboratory assistant had recently been recruited.

However, the CPT regrets the fact that the Azerbaijani authorities have failed to implement its recommendations to employ nurses and ensure that someone qualified to provide first aid (preferably with a recognised nursing qualification) is always present in the prison. As a consequence, no health-care staff were present in the establishment at night and at weekends.

Further, the delegation was concerned to note that one of the prisoners (with training as a surgeon) continued to work for the health-care service and was involved in the performance of health-care tasks during the night, despite the specific recommendation made by the Committee after the visit in 2006.

31. In the light of the above, the CPT calls upon the Azerbaijani authorities to take steps at Gobustan Prison to:

- substantially increase the number of nursing staff;

- ensure that someone qualified to provide first aid, preferably with a recognized nursing qualification, is always present on the premises of the establishment, including at night and weekends;

- put an end to the practice of involving prisoners in the performance of healthcare tasks ...”

40. In November 2009 the UN Committee Against Torture considered the third periodic report of Azerbaijan and adopted, inter alia, the following conclusions (CAT/C/AZE/CO/3):

“5. Insufficient basic legal safeguards

11. ... The Committee further regrets the lack of information provided with regard to the mechanism or legal provision through which detainees may request a medical examination by an independent doctor, and remains concerned at allegations that access to medical care is frequently denied, in practice, as was reportedly the case for detainee Mahir Mutafayev who suffered second- and third-degree burns and was not granted access to medical attention until 11 to 12 hours after the incident ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

41. Relying on Articles 2, 3 and 13 of the Convention, the applicant complained that his son had either been deliberately killed by prison guards as a result of torture or that the domestic authorities had failed to protect his son’s life. He also complained that the domestic authorities had failed to carry out an effective investigation into the circumstances surrounding his son’s death.

42. The Court considers that the applicant’s complaints should be examined solely under Article 2 of the Convention, which provides, in so far as relevant:

“1. Everyone’s right to life shall be protected by law. ...”

A. Admissibility

43. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of his complaints, without specifying which particular remedies he had failed to exhaust.

44. The applicant maintained his complaints.

45. The Court observes that the applicant duly challenged the prosecuting authorities’ decisions concerning their refusal to institute criminal proceedings in connection with his son’s death before the domestic courts. The Baku Court of Appeal’s decision of 22 May 2009 constitutes the final domestic decision which was not subject to further appeal under domestic law. Moreover, the applicant raised the complaints subsequently made to the Court before the domestic courts.

46. The Court thus finds that the applicant’s complaints cannot be rejected for non-exhaustion of domestic remedies. It considers that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Substantive aspect of Article 2 of the Convention

(a) The parties’ submissions

47. Firstly, the applicant disputed the official version of events, that his son had died as a result of an accidental fire. He argued that prison guards had tortured his son on the night of 3 December 2006, which had resulted in his death. He also argued that the fire had not been accidental and that the prison guards had set the cell on fire in order to eliminate the signs of torture and to hide the real cause of death. In support of his allegation the applicant relied on three photographs of his son taken immediately after the fire.

48. The applicant also submitted that the State had failed to protect his son’s life. In particular, he stated that his son had not been provided with appropriate medical care after the incident which had led to his death. In that connection, he asserted that although his son had been taken out of his cell at 7 a.m. with serious burns he had not been sent to hospital until 11.45 a.m. and had not arrived there until 2.45 p.m. He further submitted that his son should have been taken to a hospital in Gobustan rather than Baku, which was far from Gobustan Prison. In any event, the distance or the technical problems of the car that had transported his son could not explain the long delay in his son’s transfer to hospital.

49. Lastly, the applicant asserted that the prison authorities had failed to adapt his son’s conditions of detention to his illness, which, according to the official version of events, had been the cause of the fire. In particular, he argued that M.M. should not have been left alone in his cell given his medical history and the fact that the prison authorities had known of his condition.

50. The Government contested the applicant’s submissions. They submitted that the applicant’s son had never been ill-treated or tortured in prison and that his death had resulted from an accidental fire. In that connection, the Government submitted that cell no. 94 had been equipped with an alarm system which had gone off during the incident. The prison guards had immediately intervened at 7 a.m. and had given first aid to the applicant’s son. He had been sent to the special hospital of the Prisons Service at 11.45 a.m. and had arrived there at 2.45 p.m. According to the Government, such a long period of time had been due to the fact that the distance between the prison and the hospital was 125 km and that the car transporting the applicant’s son had broken down on its way there.

51. Lastly, the Government submitted that there was no link between the death of the applicant’s son and the time taken to transfer him to hospital. In that connection, the Government referred to the statement of a forensic expert given during the investigation, without specifying the identity of the expert in question or providing the Court with a copy of his or her statement.

(b) The Court’s assessment

(i) General principles

52. The Court reiterates that Article 2, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-47, Series A no. 324).

53. The first sentence of Article 2 § 1 enjoins the States not only to refrain from the intentional and unlawful taking of life, but also lays down a positive obligation on the States to take appropriate steps to safeguard the lives of those within their jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004-XII). In the context of prisoners, the Court has previously had occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. As a general rule, the mere fact that an individual dies in suspicious circumstances while in custody should raise an issue as to whether the State has complied with its obligation to protect that person’s right to life (see Slimani v. France, no. 57671/00, § 27, ECHR 2004-IX (extracts); Geppa v. Russia, no. 8532/06, § 70, 3 February 2011; and Karsakova v. Russia, no. 1157/10, § 48, 27 November 2014).

54. It is incumbent on the State to account for any injuries suffered in custody, an obligation which is particularly stringent when an individual dies (see, for example, Salman v. Turkey [GC], no. 21986/93, § 99, ECHR 2000-VII; Shumkova v. Russia, no. 9296/06, § 89, 14 February 2012; and Çoşelav v. Turkey, no. 1413/07, § 53, 9 October 2012). The national authorities also have an obligation to protect the health and well-being of persons who have been deprived of their liberty (see Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004; and Dzieciak v. Poland, no. 77766/01, § 91, 9 December 2008; and Karpylenko v. Ukraine, no. 15509/12, § 79, 11 February 2016). In the context of Article 2, the obligation to protect the life of individuals in custody also implies an obligation for the authorities to provide them with the medical care necessary to safeguard their life (see Taïs v. France, no. 39922/03, § 98, 1 June 2006; Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006; and Jasinskis v. Latvia, no. 45744/08, § 60, 21 December 2010).

(ii) Application to the present case

55. The Court observes at the outset that the applicant alleged that the domestic authorities were responsible for his son’s death for the following reasons. Firstly, he argued that the prison guards had tortured his son before the fire on the night of 3 December 2006 which had resulted in his death and that the fire had not been accidental but had been aimed at hiding the real cause of death. Secondly, he contended that his son had not been provided with adequate medical assistance after the incident as there had been an unjustified delay in transferring him to hospital. In addition to that, he argued that his son’s conditions of detention had not been compatible with his illness because his medical history meant that he should not have been left alone in his cell.

56. The Court thus considers that the questions to decide in the present case are, firstly, whether the applicant’s son was tortured by the prison guards, which resulted in his death, as the applicant has alleged, and, secondly, whether the domestic authorities complied with their obligation to protect the life of the applicant’s son by taking all the necessary measures.

57. As regards the first question, the Court reiterates that it is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nevertheless, in the light of the importance of the protection afforded by Article 2 of the Convention, where allegations are made under that Article the Court must apply the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Orhan v. Turkey, no. 25656/94, §§ 264-65, 18 June 2002, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 131, ECHR 2014).

58. Bearing in mind the above principles, the Court notes that the applicant alleged that his son had died before the fire after being tortured by the prison guards. In support of his allegation he relied on three photographs of his son taken immediately after the fire.

59. However, the Court observes that the photographs in question contradict the applicant’s allegation that his son died as a result of torture inflicted the night before the fire as it is clear from them that M.M. was still alive after the fire, when the photographs were taken. The Court also notes that although the Government failed to provide the Court with a copy of post-mortem forensic report no. 147 dated 5 December 2006, it transpires from the domestic authorities’ decisions that the forensic report in question only confirmed the existence of numerous serious burns on M.M.’s body.

60. In the light of the above, the Court cannot conclude beyond all reasonable doubt that the applicant’s son died as a result of torture by the prison guards, as alleged by the applicant.

61. As regards the second question, the Court, based on all the material in its possession, points out at the outset that although the parties differ in their view as to the exact time the fire began, other facts relating to the events of 3 December 2006 are not in dispute. In particular, it does not appear to be in dispute that the applicant’s son was taken out of his cell by the prison guards at around 7 a.m. and that there were numerous serious burns on his body. M.M. was given first aid by a paramedic at Gobustan Prison and at around 11.45 a.m. he was sent by car to a hospital in Baku, where he arrived at 2.45 p.m. and died at 3.30 p.m.

62. In that connection, the Court notes that even assuming that it only took fifteen minutes after the telephone call for the paramedic to arrive at the prison, which is both remote and large, as he stated during the investigation, it is struck by the fact that there was no medical staff on duty at the time of the incident. The Court further notes that the Government did not provide any explanation as to why the prison authorities failed to secure immediate transfer of the applicant’s son to a hospital and it took until 11.45 a.m. for them to do so, despite the fact that he had suffered serious burns before being taken out of his cell at 7 a.m. The Court observes that the prison authorities could not have been ignorant of the seriousness of M.M.’s injuries and that there was no doubt that he required the requisite treatment immediately. In those circumstances, while in no way speculating as to M.M.’s chances of survival if he had been taken to hospital immediately, the Court considers that the prison authorities should have been aware of the risk that a delayed transfer presented to his life (compare Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, § 96, ECHR 2013). The seriousness of the situation was also confirmed by the prison paramedic, who stated that M.M.’s state of health had deteriorated at around 8 a.m. when he had requested his transfer to hospital (see paragraph 19 above). However, the prison authorities failed to decide on that transfer in a timely manner, waiting until 11.45 a.m.

63. The Court also observes that the car taking the applicant’s son to hospital left Gobustan Prison at 11.45 a.m., but did not arrive in Baku until 2.45 p.m. The Court cannot accept the Government’s arguments that such a delay could be explained by the fact that the distance between Gobustan Prison and Baku was 125 km, and that the car in question had broken down.

64. In that connection, the Court notes that the Government submitted that Gobustan Prison was 125 km from Baku whereas in a previous case they submitted that the prison was 45 km away (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 131, 29 November 2007). In any event, the Government failed to explain why the prison staff transporting the applicant’s son, who was in a critical state, to the hospital did not call an ambulance when their car broke down instead of spending an hour and fifteen minutes repairing it (see paragraph 19 above).

65. As regards the Government’s assertion that there was no link between the death of the applicant’s son and his belated transfer to hospital, the Court notes that the object of its examination is whether or not the domestic authorities fulfilled their duty to safeguard the life of the applicant’s son by providing him with proper medical treatment in a timely manner.

66. The foregoing considerations enable the Court to conclude that the behaviour of the domestic authorities towards critically ill prisoner between 7 a.m. and 2.45 p.m. on 3 December 2006 constituted a violation of the State’s obligation to protect the lives of persons in custody (compare Anguelova v. Bulgaria, no. 38361/97, §§ 127-130, ECHR 2002-IV; Taïs, cited above, §§ 99-102; Huylu, cited above, §§ 61-68; and Jasinskis, cited above, §§ 62-67).

67. Having regard to its above-mentioned findings, the Court considers that it is not necessary to examine also, in the present case, the applicant’s complaint concerning the compatibility of his son’s conditions of detention with his illness (see paragraph 55 above).

68. There has accordingly been a violation of Article 2 of the Convention under its substantive aspect.

2. Procedural aspect of Article 2 of the Convention

(a) The parties’ submissions

69. The applicant maintained that the criminal investigation had been ineffective. In particular, he asserted that the investigation had tried to cover those who had been responsible for his son’s death and had failed to establish the exact circumstances of the death. The applicant further submitted that the investigation had been superficial and that the wording of the investigating authorities’ decisions relating to refusal to institute criminal proceedings had been identical. Lastly, he submitted that he had not been duly informed of the progress of the investigation.

70. The Government did not make any submissions on the merits.

(b) The Court’s assessment

General principles

71. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation when a person dies in suspicious circumstances (see Mikayil Mammadov v. Azerbaijan, no. 4762/05, § 102, 17 December 2009, and Lari v. the Republic of Moldova, no. 37847/13, § 34, 15 September 2015). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, ECHR 2002-II).

72. The investigation must be effective in the sense that it is capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see Oğur v. Turkey [GC], no. 21594/93, § 88, ECHR 1999-III, and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 172, 14 April 2015). This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death, or identify the person or people responsible, will risk falling foul of this standard. Whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention (see, for example, mutatis mutandis, Ilhan v. Turkey [GC], no. 22277/93, ECHR 2000-VII, § 63). Moreover, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice. In all cases, the next of kin of the victim must be involved in the procedure to such an extent as is necessary to safeguard his or her legitimate interests (see Tsintsabadze v. Georgia, no. 35403/06, § 76, 15 February 2011).

73. A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-104, Reports 1998-VI, and Adalı v. Turkey, no. 38187/97, § 224, 31 March 2005). It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating suspicious deaths may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Mikayil Mammadov, cited above, § 105).

74. Turning to the circumstances of the present case, the Court notes that the applicant complained of the inadequacy of the investigation into his son’s death carried out by the domestic authorities.

75. A criminal inquiry was launched by the prosecuting authorities on 4 December 2006, one day after M.M.’s death. Following a series of domestic proceedings, the Garadagh District Prosecutor’s Office refused to institute criminal proceedings in connection with the death of the applicant’s son and that decision was upheld by the domestic courts. It remains to be assessed whether the criminal inquiry was effective, as required by Article 2.

76. The Court notes that on four occasions the domestic prosecutors and courts overruled the relevant investigator’s decisions for failure to carry out a comprehensive criminal inquiry. It was repeatedly noted that the inquiries had been incomplete and that the refusals to institute criminal proceedings had been ill-founded. The Court concurs with the national authorities’ findings as regards the quality and scope of the inquiries, and considers that the repeated remittals of the case disclose a serious deficiency in the authorities’ compliance with the obligation to establish the circumstances of M.M.’s death (see Banel v. Lithuania, no. 14326/11, § 71, 18 June 2013, and Tikhonova v. Russia, no. 13596/05, § 91, 30 April 2014).

77. The Court also observes numerous particular shortcomings in the criminal inquiry carried out by the domestic authorities.

78. Firstly, the applicant was not informed of his son’s death until 6 December 2006. The Court considers that this delay was all the more important in the present case as the investigator refused for the first time to institute criminal proceedings on 7 December 2006, only three days after the beginning of the criminal inquiry. The applicant was therefore not only unable to participate in the first criminal inquiry, but was also not informed about the steps taken by the investigator (see Çoşelav, cited above, § 74).

79. Secondly, the Court notes that the prosecuting authorities failed to secure all the evidence concerning the death of the applicant’s son. In particular, they failed to take the relevant steps to establish the cause of the fire which led to his death. The investigating authorities failed to conduct a forensic fire examination on the grounds that the scene of the incident had not been preserved. However, the domestic authorities failed to explain why the scene of the incident had not been preserved. No explanation for that omission was provided by the Government.

80. Thirdly, the Court observes that the investigating authorities failed to address any of the clear contradictions between the conclusions of the handwriting report of 6 April 2007 and the forensic report of 25 April 2007 in order to establish whether the statement of 3 December 2006 had indeed been written and/or signed by the applicant’s son and in which circumstances.

81. Fourthly, the Court observes that although the investigation established that the applicant had not been transferred to a hospital immediately, it failed to address the responsibility of the prison authorities for that omission.

82. Lastly, the Court notes that the prosecuting authorities failed to inform the applicant of the progress of the investigation and to provide him 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 it was not until 26 December 2008 that the applicant was provided with a copy of the prosecutor’s decision of 7 May 2008, following the Ombudsman’s intervention (see paragraph 32 above).

83. 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 applicant’s son. It accordingly holds that there has been a violation of Article 2 under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

84. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

1. Pecuniary damage

85. The applicant claimed 1,800 euros (EUR) in respect of pecuniary damage, noting that that was what he had spent in following regularly the progress of the domestic proceedings by visiting the offices of the prosecuting authorities and attending all the court hearings.

86. The Government contested the applicant’s claim, submitting that he had failed to substantiate it.

87. The Court does not find any causal link between the damage claimed and the violations found (see Yagublu v. Azerbaijan, no. 31709/13, § 68, 5 November 2015). Accordingly, it rejects the applicant’s claim in respect of pecuniary damage.

2. Non-pecuniary damage

88. The applicant claimed EUR 35,000 in respect of non-pecuniary damage.

89. The Government submitted that the applicant’s claim was unsubstantiated.

90. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 20,000 under this head, plus any tax that may be chargeable on this amount (see Mikayil Mammadov, cited above, § 150).

B. Costs and expenses

91. The applicant claimed EUR 3,500 for legal services in the proceedings before the Court. He claimed a further EUR 1,610 for translation costs. In support of his claim, he submitted a contract for legal services rendered in the proceedings before the Court and a contract concluded with a translator.

92. The Government considered the claim excessive.

93. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that the applicant submitted translations of domestic court decisions and other documents relating to the domestic proceedings. The Court does not, however, consider that the translation of those documents was necessary for its proceedings (see Allahverdiyev v. Azerbaijan, no. 49192/08, § 71, 6 March 2014, and Sakit Zahidov v. Azerbaijan, no. 51164/07, § 70, 12 November 2015). Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 covering costs under all heads, to be paid directly to the applicant’s representatives.

C. Default interest

94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 2 in respect of the domestic authorities’ failure to protect the right to life of the applicant’s son;

3. Holds that there has been a violation of Article 2 of the Convention in respect of the domestic authorities’ failure to conduct an effective investigation into the circumstances of the death of the applicant’s son;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Azerbaijani manats at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly into the applicant’s representatives’ bank account;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MUSTAFAYEV v. AZERBAIJAN - 47095/09 (Judgment : Violation of Article 2 - Right to life (Article 2 - Positive obligations Article 2-1 - Life) (Substantive aspect) Violation o...) [2017] ECHR 404 (04 May 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/404.html Cite as: ECLI:CE:ECHR:2017:0504JUD004709509, [2017] ECHR 404, CE:ECHR:2017:0504JUD004709509