Communicated on 4 June 2014
FIRST SECTION
Application no. 69460/12
Shuriyya ZEYNALOV
against Azerbaijan
lodged on 16 October 2012
STATEMENT OF FACTS
The applicant, Mr Shuriyya Zeynalov, is an Azerbaijani national, who was born in 1938 and lives in Nakhchivan. He is represented before the Court by Mr R. Mustafazade and Mr A. Mustafayev, lawyers practising in Azerbaijan.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Arrest and death of the applicant’s son in custody
On 24 August 2011 the applicant’s son (T.Z.) was arrested by agents of the Ministry of National Security (“the MNS”) of the Nakhchivan Autonomous Republic (“the NAR”). He was suspected of having committed the criminal offence of high treason as provided for in Article 274 of the Criminal Code.
On 28 August 2011 T.Z. died while in custody. Following T.Z.’s death, photographs and a video recording showing signs of ill-treatment on his body were given to the media by the members of the deceased’s family and the incident was widely covered in the media.
B. Complaints about the circumstances of T.Z.’s death
On an unspecified date, T.Z.’s family asked the MNS to investigate the circumstances of the death.
By a letter of 26 November 2011, entitled “Extract From Decision”, the chief investigator at the MNS of the NAR informed the family that on 24 August 2011 T.Z. had been arrested within the framework of criminal proceedings instituted under Article 274 of the Criminal Code and that on 26 August 2011 he had been charged with the criminal offence of high treason. On 26 August 2011 the Nakhchivan City Court ordered his pre-trial detention. However, on 8 September 2011 the criminal proceedings in question were discontinued owing to T.Z.’s death. The letter was silent as to the circumstances of T.Z.’s death in custody.
On 12 December 2011 the lawyer of T.Z.’s spouse wrote to the Prosecutor General and the MNS of the NAR asking them to provide him with all documents relating to the investigation into T.Z.’s death, such as forensic reports and procedural decisions, as well as the documents concerning the criminal proceedings instituted against T.Z.
On 19 December 2011 the lawyer wrote to the Prosecutor General of the Republic of Azerbaijan and the Ombudsman noting that T.Z.’s family had not been informed of any investigation into T.Z.’s death and that the family had not been provided with any document relating to an investigation into this death.
In the meantime, on 29 December 2011 the chief investigator at the MNS of the NAR sent to the lawyer a letter in which, without replying to the lawyer’s requests, he criticised the lawyer accusing him and the deceased’s family of spreading defamatory information about the MNS’s activity.
By a letter of 30 December 2011, the Ombudsman informed the lawyer that following an investigation carried out by the prosecution authorities of the NAR it had been established that T.Z. had not been ill-treated by agents of the MNS and that he had died of pulmonary embolism. The Ombudsman relied in this connection on a forensic report of 5 September 2011. However, the Ombudsman did not provide T.Z.’s family with a copy of the above-mentioned forensic report or any other document relating to the investigation into T.Z.’s death.
On 5 March 2012 the lawyer wrote to the Prosecutor General and the Minister of National Security of the Republic of Azerbaijan asking for documents relating to the investigation into T.Z.’s death.
On 19 March 2012 the Prosecutor General’s Office informed the lawyer that his request had been examined and that he could apply to the prosecution authorities of the NAR in order to obtain the relevant documents.
Relying on the letter of 19 March 2012 of the Prosecutor General’s Office, the lawyer applied to the Prosecutor General of the NAR asking him to provide the deceased’s family with the relevant documents. However, he did not receive any reply to his request.
On 3 May 2012 the chief investigator at the MNS of the NAR sent a letter to the applicant accusing him of defamation on account of the content of a complaint to the President of the Republic about the MNS’s activity. The investigator further noted that T.Z. had not been ill-treated and that he had died of pulmonary embolism. In this connection, he relied on a forensic report of 28 August 2011. However, the investigator failed to provide the applicant with the forensic report in question or any other document relating to the investigation into T.Z.’s death.
By a letter of 16 May 2012 the Prosecutor General’s Office informed the applicant that T.Z. had not been ill-treated in the MNS and that his death had resulted from pulmonary embolism.
On 21 May 2012 the lawyer lodged an application with the Sabail District Court asking the court to declare unlawful the domestic authorities’ failure to provide T.Z.’s family with the documents relating to the investigation into T.Z.’s death and to order them to provide the family with the relevant documents.
On 24 May 2012 the Sabail District Court refused to admit the claim. It found that the application had been incorrectly introduced under the procedure of judicial review of prosecuting authorities’ actions or decisions, as provided by Articles 449-450 of the Code of Criminal Procedure (“the CCrP”). The court noted that this type of complaint should be made under the administrative-court procedure in accordance with Article 2 of the Code of Administrative Procedure.
On 22 June 2012 the Baku Court of Appeal upheld the first-instance court’s decision.
On 12 October 2012 the applicant lodged an application with the Nakhchivan Economic-Administrative Court against the Prosecutor General’s Office and the MNS of the NAR. He asked the court to order the respondent parties to provide him with the documents relating to the investigation into the death of his son and to declare unlawful their inaction in this respect.
By a letter of 17 October 2012, the Nakhchivan Economic‑Administrative Court informed the applicant that his claim was out of its jurisdiction and that he could lodge a complaint with the relevant court under the procedure of judicial review of prosecuting authorities’ actions or decisions under the CCrP.
On 2 November 2012 the applicant appealed against this letter to the Supreme Court of the NAR reiterating his previous complaints. The applicant did not receive any reply to his appeal.
C. Allegations published in the media concerning the circumstances of T.Z.’s death
In December 2012 I.M., who was at that time in Russia and claimed to be a former agent of the MNS of the NAR, stated in the media that T.Z. had been tortured on the premises of the MNS in Nakhchivan from 24 to 27 August 2011 and that he had died as result of torture. In this connection, he noted that he had witnessed how T.Z. had been tortured and quoted the names of the MNS’s high officials who had allegedly tortured him.
Following the publication of I.M.’s statements in the media, the Azerbaijani authorities instituted criminal proceedings against I.M. for alleged fraud and requested the Russian authorities to extradite him to Azerbaijan.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the State failed to protect his son’s life and that there was no effective investigation into his son’s death.
The applicant complains under Article 3 of the Convention that his son was tortured by agents of the MNS and that the domestic authorities failed to carry out an effective investigation in this respect.
QUESTIONS TO THE PARTIES
1. Has the applicant’s son’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In which circumstances did the applicant’s son die? In particular, assuming that the applicant’s son’s death resulted from pulmonary embolism as indicated in the forensic reports of 28 August 2011 and 5 September 2011, was the applicant’s son provided with the adequate medical care after his arrest by agents of the Ministry of National Security? Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
2. Has the applicant’s son been subjected to treatment in breach of Article 3 of the Convention in custody between 24 August 2011 and 28 August 2011? Having regard to the procedural protection from torture, inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?
The Government are requested to submit copies of all documents, such as forensic reports, procedural decisions, testimony records, photographs, video recordings or any other document relating to the criminal proceedings concerning the death of the applicant’s son.
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