Communicated on 16 May 2017
FIFTH SECTION
Application no. 72611/14
Mayila TAGIYEVA
against Azerbaijan
lodged on 1 November 2014
STATEMENT OF FACTS
The applicant, Ms Mayila Tagiyeva, is an Azerbaijani national, who was born in 1964 and lives in Baku. She is represented before the Court by Mr R. Hajili, Ms R. Remezaite, Mr P. Leach, Ms J. Gavron, Ms J. Evans and Ms K. Levine, lawyers practising in Azerbaijan and the United Kingdom, respectively.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Journalistic activity of the applicant’s husband and his criminal conviction
The applicant’s husband, Rafig Tagiyev (R.T.), was a well-known writer and columnist who collaborated with various newspapers and journals.
He wrote under his own name articles, essays and columns relating to various social issues, including the place of the religion in the society and its dissemination as a political ideology. In this respect, he was very critical of the influence of Iran in Azerbaijan and in the world.
On 1 November 2006 an article entitled “We and Europe” (“Biz və Avropa”) and signed by R.T. was published in the Sanat Gazeti newspaper. In the article R.T. criticised Islam as a religion in comparison with Christianity, calling Islamic moral and humanism false.
Following the publication of the article, R.T. received death threats from various Azerbaijani and Iranian religious personalities and groups. In particular, in November 2006 one of the prominent religious leaders of Iran, Ayatollah Mohammad Fazel Lankarani, issued a religious fatwa calling for R.T.’s death. Moreover, the publication of the article triggered protests in Iran in front of the Azerbaijani embassy and consulate.
According to the applicant, in November 2006 R.T. and his family were placed under police protection for security reasons and they were obliged to change their place of residence.
On 11 November 2006 criminal proceedings were instituted against R.T. and the editor-in-chief of the Sanat Gazeti newspaper for publication of the above-mentioned article.
On 4 May 2007 the Sabayil District Court found R.T. guilty under Article 283.1 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility, committed publicly or by use of the mass media) and sentenced him to three years’ imprisonment.
On 28 December 2007 R.T. was dispensed from serving the remainder of his sentence by a presidential pardon decree. According to the applicant, after R.T.’s release from prison, he was no longer under police protection.
B. Death of the applicant’s husband
On 10 November 2011 R.T. published on a website an article entitled “Iran and Inevitability of Globalisation” (“Iran və Qloballaşma Qaçılmazlığı”) in which he criticised the religious nature of the Iranian State and its policy in the world.
On 19 November 2011 when R.T. returned home from work he was stabbed by an unknown person who immediately left the scene of the crime. R.T. managed to get to his flat and his family called an ambulance which took him to a hospital.
Upon his arrival at the hospital, R.T. was operated and then transferred to the intensive care unit of the hospital.
On 21 November 2011 R.T. left the intensive care unit of the hospital and was transferred to a general ward. On the same day, he was able to give two brief radio interviews from his hospital bed.
At around 2 p.m. on 23 November 2011 a nurse gave him an injection. Shortly afterwards, at around 2.40 p.m. R.T. told his family members that he was not feeling well and they called a doctor. The doctor who examined him said that there was no problem and left the room. About 10 minutes later R.T. started to vomit and his family again called the doctor. A few minutes later R.T. died before the arrival of the doctor.
On 28 November 2011 the son of Mohammad Fazel Lankarani made a statement congratulating the killer and the Azerbaijani nation for R.T.’s death.
C. Criminal investigation into the murder
On 20 November 2011 criminal proceedings were instituted under Article 126.1 (deliberate infliction of serious injury to health) of the Criminal Code by the Khatai District Police Office in connection with R.T.’s stabbing.
On 21 November 2011 the criminal case was reclassified under Articles 29 (attempted crime) and 120.1 (murder) of the Criminal Code and its investigation was handed over to the Serious Crimes Department of the Prosecutor General’s Office.
Following the death of R.T., on 23 November 2011 the criminal case was reclassified only under Article 120.1 of the Criminal Code.
On 23 November 2011 a post-mortem forensic examination of R.T. was carried out. Forensic report no. 146 dated 23 November 2011 showed that R.T.’s death resulted from numerous stab wounds in his chest and internal organs, as well as passive cirrhotic peritonitis, small intestine atony, general intoxication of the body developed after the medical operation and acute heart-lung failure which resulted from aggravation of chronic ischemic heart disease in the context of pulmonary edema and pleural adhesion.
On 14 December 2011 the applicant lodged a request with the prosecuting authorities asking for recognition of her victim status. She also asked the prosecuting authorities to provide her with the relevant documents concerning the ongoing criminal investigation, to examine video recordings from the security cameras situated in the area where the crime had been committed, and to identify mobile telephones used in that area and to examine the list of calls made to and from those mobile telephones.
On 28 December 2011 the applicant was granted victim status.
On 5 January 2012 the applicant again wrote to the prosecuting authorities, reiterating her previous requests. Moreover, she asked them to question the agents of the Ministry of National Security and the Ministry of Internal Affairs who had been responsible for R.T.’s protection and to obtain copies of the decisions taken by the above-mentioned authorities for his protection. She further asked them to examine the possibility of murdering R.T. in the hospital.
By a decision of 14 January 2012 the investigator in charge of the case dismissed the applicant’s requests. In particular, the investigator held that the applicant had already been granted victim status and had been questioned, that the relevant investigative actions had been taken and that the applicant would have access to the case file following the termination of the preliminary investigation.
In the meantime, on 13 January 2012 the applicant lodged an action with the Nasimi District Court under the procedure established by Article 449 of the Code of Criminal Procedure providing for the possibility to challenge the actions or decisions of the investigating authorities before the domestic courts. Relying on Articles 2 and 10 of the Convention, she complained about the ineffectiveness of the criminal investigation.
On 17 January 2012 the Nasimi District Court and on 6 February 2012 the Baku Court of Appeal dismissed the applicant’s action, holding that her complaints could not be examined under the procedure established in accordance with Article 449 of the Code of Criminal Procedure.
On 15 February 2012 the applicant sent a telegram to various domestic authorities, including the President of the Republic, complaining about the progress of the investigation. According to the applicant, following that telegram, on 27 February 2012 the Prosecutor General of the Republic of Azerbaijan met her and her lawyer.
On 26 September 2012 the applicant again sent a telegram to various domestic authorities, including the President of the Republic. She complained about the length of the criminal investigation and the prosecuting authorities’ failure to examine the video recordings from the security cameras situated in the area where R.T. had been stabbed.
On 26 December 2012 the applicant again lodged a request with the prosecuting authorities asking for information about the progress of the criminal investigation, reiterating her previous requests.
By a decision dated 10 January 2013 the investigator dismissed the request, holding that the applicant could only have access to the case file and the relevant documents following the termination of the preliminary investigation.
On 1 April 2013 the applicant lodged a complaint with the Nasimi District Court complaining about de facto termination of the criminal investigation on account of the prosecuting authorities’ failure to carry out an effective investigation within a reasonable period of time.
On 12 April 2013 the Nasimi District Court dismissed the complaint, finding that the investigation was still ongoing and had been extended until 20 May 2013.
On 13 May 2013 the Baku Court of Appeal refused to admit the applicant’s appeal, holding that this kind of complaint which was not against any decision of the prosecuting authorities, but their alleged failure to conduct investigative actions, could not be challenged before the courts.
On 8 November 2013 the investigator in charge of the case decided to suspend the criminal investigation, owing to the inability to identify the perpetrators of the crime.
On 8 January 2014 the applicant was informed of the investigator’s decision of 8 November 2013 suspending the investigation.
On 27 January 2014 the applicant lodged a request with the prosecuting authorities asking for a copy of the decision of 8 November 2013. She further asked the investigating authorities to provide her with copies of the relevant documents of the criminal case.
By a letter dated 7 February 2014, the investigator informed the applicant that she could not have access to the case file because the investigation was not terminated or discontinued, but only suspended. It was also stated in the letter that the applicant could familiarise herself with the decision of 8 November 2013 in the Serious Crimes Department of the Prosecutor General’s Office.
On 14 April 2014 the applicant lodged a complaint against the investigator’s decision of 8 November 2013. Relying on Articles 2 and 10 of the Convention, she complained that the criminal investigation had been ineffective and that the State had been responsible for death of her husband who had been murdered because of his journalistic activity. In that connection, she pointed out that the investigating authorities had failed to identify the perpetrators of the crime, to secure all the evidence concerning the death and to provide her with a copy of forensic report and other relevant documents. As regards the State’s responsibility, she argued that, although there had been a real danger to R.T.’s life because of his journalistic activity, the State had failed to protect him. In particular, she submitted that R.T. had been placed under police protection in November 2006, but he had not been under police protection following his release from prison. She also complained about the quality of her husband’s medical treatment in hospital, pointing out that the investigation had not examined whether it had been related to his death.
On 24 April 2014 the Nasimi District Court dismissed the applicant’s complaints, finding that the decision of 8 November 2013 was lawful. In that connection, the court held that the investigating authorities had taken all the possible investigative actions for identification of the perpetrators of the crime until the suspension of the investigation. The court’s decision was silent as to the applicant’s particular complaints.
On 25 April 2014 the applicant appealed against that decision, reiterating her previous complaints.
On 2 May 2014 the Baku Court of Appeal upheld the first-instance court’s decision.
COMPLAINTS
The applicant complains under Article 2 of the Convention that the State failed to protect her husband’s right to life because it knew or ought to have known about a risk to his life. She further complains that the domestic authorities failed to conduct an effective investigation into the death of her husband.
The applicant complains that the unlawful killing of her husband constituted a breach of Article 10 of the Convention, as he was targeted on account of his journalistic activities.
Relying on Article 13 of the Convention, the applicant complains that she had no effective remedies in respect of the complaints raised under Articles 2 and 10 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant’s husband’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, was the State under a positive obligation to take appropriate measures to safeguard the applicant’s husband’s life? Were the domestic authorities informed of any real risk to the applicant’s husband’s life before his murder? If so, which measures were taken by the domestic authorities in this respect? Was the applicant’s husband placed under police protection in November 2006? If so, why and when did the domestic authorities stop his placement under police protection? 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 there been an interference with the applicant’s husband’s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention? In particular, was the applicant’s husband’s murder related to his journalistic activity? Did the Government comply with their positive obligations under Article 10 of the Convention as defined by the Court (see Özgür Gündem v. Turkey, no. 23144/93, §§ 42-46, ECHR 2000‑III, and Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, §§ 137-139, 14 September 2010)?
3. Did the applicant have at her disposal effective domestic remedies in respect of her complaints under Articles 2 and 10, as required by Article 13 of the Convention?
4. The Government are requested to provide detailed information concerning any investigative and other steps undertaken by the domestic authorities. They are, in particular, 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 murder of the applicant’s husband.
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