ASLANOV v. AZERBAIJAN - 35402/07 (Judgment : Article 5 - Right to liberty and security : Fifth Section Committee) [2018] ECHR 937 (15 November 2018)

In the case of Aslanov v. Azerbaijan,

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

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 16 October 2018,

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

PROCEDURE

1. The case originated in an application (no. 35402/07) 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 Arif Inshalla oglu Aslanov ( Arif İnşalla oğlu Aslanov - "the first applicant"), on 6 August 2007.

2. The first applicant was represented by Mr E. Guliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government ("the Government") were represented by their Agent, Mr Ç. Asgarov.

3. The first applicant alleged, in particular, that the domestic courts had failed to justify his pre-trial detention.

4. On 10 March 2008 the Court was informed of the first applicant's death in detention on 22 January 2008 and the wish of his son, Mr Emil Arif oglu Aslanov ( Emil Arif oğlu Aslanov - "the second applicant"), to continue the proceedings before the Court in his stead. The second applicant also raised on his own behalf a new complaint in connection with the first applicant's death in prison and was represented before the Court by the same lawyer, Mr E. Guliyev. Those submissions were added to the original application.

5. On 31 August 2011 the application was communicated to the Government. By a letter of 21 June 2018, the second applicant informed the Court that he will be represented by Ms S. Aghayeva, a lawyer practising in Azerbaijan, following the death of Mr E. Guliyev.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The first applicant was born in 1955 and at the time of the events lived in Baku. The second applicant was born in 1986 and resides in Baku.

7. The medical documentation in the case file shows that the first applicant suffered from a number of serious illnesses before his arrest. In particular, he suffered from end-stage kidney failure and from 28 January 2006 underwent dialysis in a specialist centre three times per week. He also suffered from a number of cardiovascular diseases and twice underwent surgery on his heart.

8. The first applicant further suffered from a severe form of type 2 diabetes and, as a result of the chronic diabetes, had severe problems with his eyesight for which he underwent surgery in 2005. As a result of the above-mentioned illnesses, he had very limited physical mobility. In particular, he could hardly move and was incapable of changing his clothes or taking a bath without assistance.

A. Institution of criminal proceedings against the first applicant and his remand in custody

9. On 20 June 2007 the first applicant was arrested by agents of the Ministry of National Security ("the MNS") on suspicion of planning to murder Z.F., at that time the head of the Absheron District Executive Authority, because of a professional dispute between them.

10. On 21 June 2007 the first applicant was charged with the attempted murder of a public official under Articles 29 and 277 of the Criminal Code. On the same day the prosecutor requested that the judge apply the preventive measure of remand in custody ( həbs qətimkan tədbiri ).

11. On 21 June 2007 the Sabail District Court, referring to the official charges brought against the first applicant and the prosecutor's request, remanded the first applicant in custody for three months. The judge substantiated the necessity of the measure by the seriousness of the first applicant's alleged criminal acts and the possibility of his absconding from and obstructing the investigation. The relevant part of the decision read as follows:

"Having examined the material in the criminal case and having agreed with the submissions of the First Deputy Prosecutor General of the Republic of Azerbaijan that the accused, A. Aslanov, attempted to commit a particularly serious crime, that it was needed to prevent his unlawful actions, that there were sufficient grounds to believe that, if released, he would abscond from the investigation and disrupt the establishment of the truth about the case and relying on Articles ... decided ..."

12. On 22 June 2007 the first applicant appealed against that order, claiming that his detention was unlawful. He submitted, in particular, that there was no justification for remanding him in custody. He also complained that the court had failed to take into account his personal situation, such as his state of health and age, when it had ordered his pre-�trial detention.

13. On 11 July 2007 the Court of Appeal dismissed the appeal. The appellate court made no mention of the first applicant's particular complaints. The relevant part of the decision reads as follows:

"The court bench considers that the first-instance court, having taken into account that A. Aslanov could obstruct the investigation, the nature of the criminal act, and the fact that the punishment for committing such an act is over two years' imprisonment, was correct in considering it necessary to apply the preventive measure of remand in custody in respect of him.

Therefore, the court bench does not consider that the representative's appeal should be allowed at this stage of the investigation."

B. The first applicant's medical care and death in detention

14. On 20 June 2007 the first applicant was taken to the pre-trial detention facility of the MNS and detained in a cell alone.

15. On 22 June 2007 the first applicant's state of health significantly deteriorated and he was urgently transferred to the medical facility of the Penitentiary Service ("the medical facility"). However, as it was impossible to undergo dialysis there, the first applicant was taken to the Central Oil Workers' Hospital, where he had regularly undergone dialysis before his arrest.

16. It appears from the medical documentation in the case file that, following the first applicant's dialysis at the Central Oil Workers' Hospital, he was taken directly to the medical facility, where he remained until his death.

17. On 22 January 2008 the first applicant's situation worsened during his dialysis at the Central Oil Workers' Hospital. He died the same day.

18. His death certificate dated 24 January 2008 indicates that the cause of death was acute heart failure.

19. A post mortem report dated 25 January 2008 also concluded that the death had resulted from acute heart failure.

20. A criminal inquiry into the first applicant's death was launched by the Nizami District Prosecutor's Office. By a decision of 1 February 2008 it refused to institute criminal proceedings, finding that there had been no criminal aspect to his death.

21. On 28 February 2008 the first applicant's family was provided with a copy of that decision. It does not appear from the case file that that decision was appealed.

C. Remedies used

22. On 25 June 2007 the first applicant's lawyer asked the investigating authorities to order a forensic medical examination in order to establish whether the first applicant's detention was compatible with his state of health. In that connection, he submitted that the first applicant suffered from a number of serious illnesses which could not be treated in detention.

23. On 9 July 2007 the investigator in charge of the case ordered a forensic medical examination. The investigator asked the experts to establish whether the first applicant suffered from coronary heart disease, postinfarction cardiosclerosis, end-stage kidney failure, diabetes and poor eyesight and if so, to determine the level of seriousness of the conditions and establish whether he could continue his medical treatment in the medical facility where he was being detained.

24. The two experts issued forensic medical report no. 124/TM, which indicated that the examination had begun on 9 July and ended on 23 July 2007. The report confirmed that the first applicant suffered from a number of serious illnesses. However, the experts concluded that he could be treated in the medical facility if he was under the full control of an endocrinologist, ophthalmologist, cardiologist and nephrologist and continued his dialysis.

25. On 30 July 2007 the first applicant's lawyer asked the investigator to order a new forensic examination with the participation of foreign experts. In particular, he noted that the first applicant could not be provided with dialysis or adequate medical assistance in respect of other conditions in the medical facility and that his detention in these circumstances amounted to a violation of Article 3 of the Convention.

26. By a decision of 6 August 2007 the investigator dismissed the request. The part of the decision regarding the first applicant's medical care in detention reads as follows:

"In accordance with the forensic report's findings, in the medical facility where he was detained the accused A. Aslanov was placed under the full control of the doctors specialising in the medical fields indicated in the report and the continuity of his [dialysis] has, until now, been ensured."

27. On 27 September and 11 October 2007 the first applicant's lawyer asked the Ministry of Justice to provide him with a copy of the document listing the serious illnesses precluding the detention of prisoners. By a letter of 7 November 2007 the Ministry of Justice refused to provide it, finding that the document in question was irrelevant to the first applicant's case as it concerned prisoners who had already been convicted as a result of a final court decision.

28. On 23 November 2007 the first applicant's lawyer lodged a civil action with the Sabail District Court, complaining of incompatibility of the first applicant's detention with his state of health and inadequate medical treatment. In particular, the lawyer asked the court to acknowledge a violation of the first applicant's right to medical assistance in detention and declare unlawful the Ministry of Justice's decision not to provide him with the document listing the serious illnesses precluding the detention of prisoners. On 27 November 2007 the first applicant's lawyer asked the President of the Sabail District Court to examine the case as soon as possible in view of the real risk to the first applicant's life.

29. On 26 January 2008 the first applicant's lawyer received a copy of a decision dated 3 December 2007 by the Sabail District Court refusing to examine on the merits the complaint lodged on 23 November 2007. The Sabail District Court refused to admit the action on the grounds that the first applicant had failed to specify the rights that he considered had been breached.

30. On 4 February 2008 the first applicant's lawyer on behalf of his family lodged an appeal against the Sabail District Court's decision of 3 December 2007, claiming that it was unlawful.

31. By a decision of 7 February 2008 the Sabail District Court quashed its decision of 3 December 2007 and decided to examine the complaint on the merits.

32. According to the Sabail District Court's decision of 4 March 2008, the first-instance court decided to leave without examination the action due to failure of the parties to attend the hearing. The court relied on Article 259.0.6 of the Code of Civil Procedure which provided that the action was left without examination if the parties failed to attend the hearing without asking in advance the court to examine the action in their absence.

D. The first applicant's trial and the appeal proceedings after his death

33. On an unspecified date the criminal investigation was completed and the case was referred to the Assize Court for trial.

34. On 5 October 2007 the Assize Court held a preliminary hearing. The first applicant requested that the court discontinue his pre-trial detention. In that regard, he submitted that his continued detention violated his rights under Articles 3 and 5 of the Convention as it was incompatible with his state of health and he was not being provided with adequate medical assistance.

35. On the same day the Assize Court dismissed the request, finding that the preventive measure of remand in custody should be left unchanged. The Assize Court made no mention of the first applicant's particular complaints and did not provide any reasons for his continued detention. The decision was not amenable to appeal.

36. On 16 November 2007 the Assize Court found the first applicant guilty under Articles 29 and 277 of the Criminal Code and sentenced him to eleven years and three months' imprisonment. The court held that he had attempted to murder Z.F., but that the planned murder had not been completed for reasons beyond his own control.

37. Following the first applicant's death on 22 January 2008 (see paragraph 17 above), on 21 February 2008 the Sumgayit Court of Appeal decided to continue the appeal proceedings in respect of the first applicant at the request of the second applicant.

38. On 29 May 2008 it dismissed the appeal and upheld the Assize Court's judgment.

39. On 28 October 2008 the Supreme Court upheld the first applicant's conviction.

II. RELEVANT DOMESTIC LAW AND PRACTICE

40. Chapter LII of the Code of Criminal Procedure ("the CCrP") lays down the procedure by which parties to criminal proceedings may challenge the actions or decisions of the prosecution authorities before the courts. Article 449 provides that a victim or his counsel may challenge such actions or decisions as, inter alia , the prosecution authorities' refusal to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecution authorities' actions or decisions may overrule them if he or she finds them to be unlawful (Article 451). This decision is amenable to appeal in accordance with the procedure established in Articles 452 and 453 of the CCrP.

41. The relevant provisions of the CCrP concerning pre-trial detention are described in detail in the Court's judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83-102, 9 November 2010) and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-�49, 9 December 2010). The relevant decisions of the Plenum of the Supreme Court concerning pre-trial detention are described in detail in the Court's judgment in Allahverdiyev v. Azerbaijan (no. 49192/08, §§ 31-�32, 6 March 2014).

THE LAW

I. PRELIMINARY ISSUE

42. The Court at the outset notes that the first applicant, Mr Arif Aslanov, died after lodging the application on 6 August 2007 and that his son, Mr Emil Aslanov, (the second applicant) has expressed his wish to continue the proceedings before the Court (see paragraph 4 above). It has not been disputed that the second applicant is entitled to pursue the application on behalf of the first applicant and the Court sees no reason to hold otherwise. However, for reasons of convenience, the text of this judgment will continue to refer to Mr Arif Aslanov as "the first applicant", even though only the second applicant is today to be regarded as having the status of applicant before the Court (see Gulub Atanasov v. Bulgaria , no. 73281/01, § 42, 6 November 2008, and Isayeva v. Azerbaijan , no. 36229/11, § 62, 25 June 2015).

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

43. The second applicant complained that the State had failed to protect his father's life while in detention and that there had been no effective investigation into his death. Article 2 of the Convention provides as follows:

"1. Everyone's right to life shall be protected by law. ..."

44. The Government submitted that the first applicant's family had failed to exhaust domestic remedies. In particular, they pointed out that the Nizami District Prosecutor's Office had launched a criminal inquiry into the first applicant's death in detention and that on 1 February 2008 the investigator in charge of the case had refused to institute criminal proceedings for lack of any criminal aspect to his death. However, the first applicant's family had never challenged this decision before the domestic courts.

45. The second applicant maintained his complaint.

46. The Court observes that in the present case, following the first applicant's death in detention, the prosecution authorities launched a criminal inquiry and that, by a decision of 1 February 2008, the Nizami District Prosecutor's Office refused to institute criminal proceedings for lack of any criminal aspect to his death. As with any decision by the prosecution authorities concerning a refusal to institute or to discontinue criminal proceedings, this decision was amenable to appeal before the domestic courts (see paragraph 40 above), however the second applicant did not appeal (compare Mustafayev v. Azerbaijan , no. 47095/09, § 45, 4 May 2017, and Malik Babayev v. Azerbaijan , no. 30500/11, §§ 31-54, 1 June 2017).

47. Moreover, the second applicant did not state whether there were special circumstances in the present case which dispensed him from having to challenge the investigator's refusal to institute criminal proceedings. The Court reiterates that mere doubts about the effectiveness of a remedy are not sufficient to dispense with the requirement to make normal use of the available avenues for redress (see Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005).

48. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

49. The first applicant complained that he had not been provided with adequate medical treatment in detention and that his detention had been incompatible with his state of health. He relied on Article 3 of the Convention which provides as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

50. The Government submitted that the first applicant had failed to exhaust domestic remedies, pointing out that he had had a wide range of legal opportunities at his disposal to complain of a lack of medical treatment. In particular, a civil action concerning a lack of medical treatment constituted an effective remedy and the first applicant could have also benefited from an administrative remedy. However, he had only raised the issue of his poor state of health before the domestic authorities in his appeal against the Sabail District Court's detention order dated 21 June 2007.

51. The first applicant disagreed with the Government's submissions, reiterating his complaint. In particular, he pointed out that on 23 November 2007 he had lodged a civil action with the Sabail District Court, but it had never been examined by the domestic courts.

52. It is undisputed by the parties and the Court also found that at the material time under Azerbaijani law the institution of civil proceedings before the domestic courts constituted an effective remedy in respect of complaints concerning a lack of medical assistance in detention (see Insanov v. Azerbaijan , no. 16133/08, §§ 86-98, 14 March 2013, and Akif Mammadov v. Azerbaijan (dec.), no. 46903/07, § 29, 13 May 2014). However, the parties differ as to the question whether the first applicant used the above remedy.

53. The Court notes that it is clear from the documents in the case file that the first applicant lodged a civil action with the Sabail District Court, which decided on 7 February 2008, following a series of procedural decisions, to examine the action on the merits (see paragraphs 28-31 above). However, by a decision of 4 March 2008, the Sabail District Court decided to leave without examination the action due to failure of the parties to attend the hearing (see paragraph 32 above).

54. The Court reiterates that the rule of exhaustion of domestic remedies does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that complaints intended to be made subsequently under the Convention should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, inter alia , Cardot v. France , 19 March 1991, § 34, Series A no. 200).

55. However, in the present case the first applicant's lawyer, failing to comply with the procedural requirements, did not appear before the Sabail District Court which decided, on 4 March 2008, to leave without examination the civil action. No appeal was lodged against that decision. Moreover, it was not stated before the Court that the second applicant and his lawyer had not been informed of that hearing or the Sabail District Court's decision of 4 March 2008 (compare Hummatov v. Azerbaijan , nos. 9852/03and 13413/04, § 88, 29 November 2007), or whether there were any other special circumstances in the present case which would dispense them from the obligation to comply with the procedural requirements.

56. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

57. Relying on Articles 5 and 13 of the Convention, the first applicant complained that the domestic courts had failed to justify his pre-trial detention. The Court considers that this complaint falls to be examined solely under Article 5 § 3 of the Convention, which reads:

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

A. Admissibility

58. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

59. The first applicant maintained his complaint, arguing that the domestic courts had failed to provide relevant and sufficient reasons for his pre-trial detention.

60. The Government submitted that the domestic courts had given sufficient and relevant reasons for the contested decisions.

2. The Court's assessment

61. The Court refers to the summaries of its case-law set out in Allahverdiyev v. Azerbaijan (cited above, §§ 51-55), which are equally pertinent to the present case.

62. The first applicant's detention was first ordered by the Sabail District Court on 21 June 2007. That decision was upheld by the Court of Appeal on 11 July 2007. His detention was subsequently upheld on 5 October 2007 by the Assize Court, which decided at the preliminary hearing that the preventive measure of remand in custody should remain unchanged.

63. The Court observes that both the Sabail District Court and the Court of Appeal used a standard template when ordering the first applicant's pre-�trial detention (see paragraphs 11 and 13 above). In particular, both courts limited themselves to repeating a number of grounds for detention in an abstract and stereotyped way, without giving any reasons why they considered those grounds relevant to the first applicant's case. They failed to mention any case-specific facts relevant to those grounds and to substantiate them with relevant and sufficient reasons (see Farhad Aliyev , §§ 191-94, and Muradverdiyev , §§ 87-91, both cited above). Moreover, the Assize Court upheld the first applicant's pre-trial detention without providing any reasons (see paragraph 35 above). In their decisions the domestic courts made no mention of the first applicant's arguments in favour of his release on account of his state of health (see Koutalidis v. Greece , no. 18785/13, § 51, 27 November 2014).

64. In view of the foregoing considerations, the Court concludes that by using a standard formula, which merely listed the statutory grounds for detention without addressing the specific facts of the first applicant's case, and by failing to justify his continued detention, the authorities failed to give "relevant" and "sufficient" reasons to justify the first applicant's pre-�trial detention.

65. Accordingly, there has been a violation of Article 5 § 3 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

66. Relying on Article 6 of the Convention, the first applicant also complained of a lack of impartiality on the part of the judges and, more generally, of a lack of independence in the judicial system of Azerbaijan.

67. In the light of all the material before it, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the provision relied on by the first applicant.

68. It follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. 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

70. The second applicant claimed 17,000 Azerbaijani manats (AZN) in respect of pecuniary damage. He submitted that his family had spent that sum on the first applicant's medical treatment and on sending him food parcels in detention. He further submitted that in the absence of any receipts proving those expenses, he would leave it to the Court's discretion to decide the exact amount to be awarded under this head.

71. The Government asked the Court to reject the claim.

72. The Court does not find any causal link between the damages claimed and the violation found (see Fatullayev v. Azerbaijan , no. 40984/07, § 186, 22 April 2010; Efendiyev v. Azerbaijan , no. 27304/07, § 60, 18 December 2014; and Yagublu v. Azerbaijan , no. 31709/13, § 68, 5 November 2015). Accordingly, it rejects the second applicant's claim in respect of pecuniary damage.

2. Non-pecuniary damage

73. The second applicant claimed 90,000 euros (EUR) in respect of non-�pecuniary damage.

74. The Government submitted that the claim was unsubstantiated and excessive.

75. The Court has found a breach of the first applicant's rights under Article 5 § 3 of the Convention (see paragraph 65 above). Noting that the second applicant has standing to pursue the application in the late first applicant's stead (see paragraph 42 above) and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the second applicant the sum of EUR 3,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

76. The second applicant claimed EUR 2,000 for legal services incurred in the proceedings before the domestic courts and EUR 780 for translation expenses. In support of his claim, he submitted four contracts concluded on various dates with a lawyer in the amount of AZN 1,200.

77. The Government considered that the amounts claimed by the second applicant were unsubstantiated and excessive. They argued that the contracts submitted fell outside the scope of the present case and that the second applicant could only claim AZN 300 in respect of legal costs incurred before the investigating authorities.

78. 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 notes that in the present case the second applicant did not submit any evidence of translation expenses and that the contracts concluded with a lawyer only amounted to AZN 1,200. However, only two of the four contracts, totalling AZN 600, concerned the period when the domestic courts examined the issue relating to the first applicant's pre-trial detention. Therefore, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs under all heads.

C. Default interest

79. 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. Holds that the second applicant has standing to pursue the application in the first applicant's stead;

2. Declares the first applicant's complaint under Article 5 of the Convention admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 5 § 3 of the Convention;

4. Holds

(a) that the respondent State is to pay the second applicant, Mr Emil Aslanov, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the second applicant, in respect of costs and expenses;

(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 second applicant's claim for just satisfaction.

Done in English, and notified in writing on 15 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Yonko Grozev
Deputy Registrar President

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