FIFTH SECTION

CASE OF ASLANOV v. AZERBAIJAN

(Application no. 35402/07)

JUDGMENT

STRASBOURG

15 November 2018

This judgment is final but it may be subject to editorial revision.

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