(Application no. 4762/05)
17 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Mikayil Mammadov v. Azerbaijan,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 26 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The background
B. Eviction of the applicant’s family and his wife’s death
1. The applicant’s version of the events
2. The Government’s version of the events
C. Inquiry by the Sumgayit City Prosecutor’s Office
“... during the investigation into the circumstances of the death of Chichek [Mammadova], it was revealed that officials of the City Executive Authority and certain officers of the Sumgayit City Police Office had committed a number of errors [in performing their official duties. The matter has been referred] to the senior management of the City Executive Authority and the City Police Office with a view to eliminating such errors and ensuring that they are not repeated in the future, as well as taking relevant measures against the persons who have committed these errors. ...
... moreover, a report was submitted to the Sumgayit City Police Office in respect of the officers of the Sumgayit City Police Office who exceeded their authority by participating, without a relevant court order, in an operation to evict you from the building where you had settled illegally; the officers responsible for the misconduct have been punished under the disciplinary procedure.”
D. Inquiry by the Binagadi District Prosecutor’s Office
“No symptoms of a psychogenic-depressive reaction potentially causing her suicide can be observed in Chichek Mammadova’s personality and mental traits. However, in the period preceding Chichek Mammadova’s death, she had experienced a state of emotional stress of a degree capable of influencing her behaviour.”
“[According to the expert opinion of 10 August 2005,] the act of self-immolation by Chichek Mammadova was carried out in an attempt to prevent [her family’s eviction]. During the incident, she found herself in the extreme circumstances of facing eviction from the rooms that [her family] had occupied, and reacted inadequately by self immolating in an ostentatious manner, having decided that it would attract the attention of those who were around her, evoke in them feelings of compassion towards herself, and help her resolve the conflict situation she encountered. In the period preceding her death, Chichek Mammadova had experienced emotional stress of a degree that could have influenced her subsequent actions.
... the additional inquiry revealed that no other person had incited Chichek Mammadova to commit suicide by means of either ill-treating her, debasing her dignity or intimidating her.
The claims of [the applicant] have not been confirmed during the additional inquiry ... It was established that the [SCEA and police] officials had carried out their official duties in a lawful manner, had given lawful instructions and had not committed any breaches of law when implementing those instructions, and that there had been no corpus delicti in [their] actions.
Therefore ... the institution of criminal proceedings should be refused.”
E. Institution of criminal proceedings and criminal investigation
“It appears from the material in the case file that the criminal investigation has not been full and comprehensive, and there was no basis for suspending the criminal proceedings as no face-to-face confrontations between witnesses have been held, and it has not been determined whether there were lawful grounds for the [SCEA and police] officials to enter the residential premises and remove the victim’s belongings from there, whether the police officers indeed went to the scene of the incident with the aim of carrying out prophylactic measures, whether such prophylactic measures were lawful, whether any physical force were used against the residents of the premises, and whether the [State officials] at the scene of the incident abused their official authority.”
“From 5 March 2004 the [SCEA] became aware of the fact that [the applicant and his family] had changed, of their own free will [without authorisation], their place of residence and were illegally residing in a State-owned non-residential building. Despite several early warnings given by [SCEA and police] officials, [the applicant and his family] continued to illegally reside in those non-residential premises.
At around 11 a.m. on 26 March 2004, pursuant to an instruction by the [SCEA’s] senior administration, [SCEA officials E.G. and Y.A.], police officers [N.G., E.N., N.A., C.V.], and the Deputy Head of the Sumgayit City Police Office J.M. went ... to the above address to have a prophylactic conversation with [the applicant and his family].
During the prophylactic conversation ... Chichek Mammadova became anxious and, having presumed that [her family] would be evicted from the premises, poured kerosene on herself and ignited it; a state of tension ensued at the scene of the incident; Chichek Mammadova was taken to hospital by her relatives; her husband [the applicant] had left the scene prior to Chichek Mammadova’s self-immolation to send a complaint by telegram; as a result, a process of eviction was started in accordance with an instruction given on the spot by [E.G. and Y.A.]; the police officers loaded [the applicant’s] belongings onto a lorry and transported them to [the hostel where the applicant’s family had previously lived] and delivered them to [R.N.], the superintendent of the hostel.
It has been determined that the senior administration of [the SCEA] sent [E.G. and Y.A.] with the purpose of carrying out prophylactic measures in respect of the internally displaced persons who were illegally occupying the State-owned non residential premises in order to ensure that [the latter] vacated the premises voluntarily, and that the senior management of [the SCEA] did not instruct its officials to evict the internally displaced persons by force. However, after [the applicant’s] wife Chichek Mammadova, who was suffering from a mental illness, had set fire to herself, [E.G. and Y.A.] instructed the police officers to move out the [applicant’s] belongings, organised the transportation of those belongings to the hostel..., delivered them to the superintendent [R.N.] and signed a deed of delivery. ...
It has been determined that, pursuant to an oral instruction from [the SCEA], the police officers were sent to the above-mentioned address by the administration of the Sumgayit City Police Office in order to participate in carrying out the prophylactic measures and, after the act of self-immolation by Chichek Mammadova, received an instruction directly from [E.G. and Y.A.] to move [the applicant’s] belongings.
[Summaries of witness testimonies and forensic evidence follow.]
Pursuant to Article 5 of the Law on Social Protection of Internally Displaced Persons and Individuals Equated to Them of 21 May 1999, the relevant local executive authorities are responsible for temporary housing of internally displaced persons. Internally displaced persons may be allowed to settle temporarily on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation ...
Pursuant to clause 4 of the Regulations on Resettlement of Internally Displaced Persons to Other Accommodation, adopted in Cabinet of Ministers Resolution No. 200 of 24 December 1999, in cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the local executive authorities must provide the former with other suitable accommodation.
According to a statement received from the Sumgayit City Court, there has been no judicial order for the eviction of [the applicant] from the premises where he had settled.
[A summary of the expert opinion on Chichek Mammadova’s mental state follows.]
The investigation did not reveal evidence in support of [the applicant’s] allegations that [the SCEA] officials demanded a bribe from him, abused or exceeded their authority, or unlawfully evicted [the applicant’s family], or that the police officers ... abused or exceeded their authority, or used force against [the applicant] and his family members or his mother-in-law. The decisions and actions of [the SCEA and police] officials taken in connection with the premises illegally occupied [by the applicant’s family] were lawful and did not transgress the limits specified by the legislation [in force]. The actions of [the SCEA and police] officials did not contain any elements of offences under Articles 308, 309, 311 and 125 of the Criminal Code or any other criminal offences.
Moreover, the investigation revealed no indications that Chichek Mammadova was driven to commit suicide by way of ill-treatment debasing her dignity or threatening her, and found no person guilty of such acts. No elements of an offence under Article 125 of the Criminal Code have been established in the actions of any person [in connection with this incident].”
F. Witness testimonies
1. The applicant, his mother-in-law and his sister-in-law
2. E.G., an SCEA official
3. Y.A., an SCEA official
4. F.K., an SCEA official
5. S.R., an SCEA official
6. J.M., Deputy Head of the Sumgayit City Police Office
7. C.V., police officer
8. N.A., police officer
9. E.N., police officer
10. N.G., police officer
11. N.I., police officer
12. S.S., police officer
13. K.A., employee of Housing Maintenance and Utilities Board No. 1
14. B.I., employee of Housing Maintenance and Utilities Board No. 1
15. T.M., television journalist
16. R.N., hostel superintendent
17. N.Q., an acquaintance of the applicant
II. RELEVANT DOMESTIC LAW
A. Relevant legal provisions on housing of refugees and internally displaced persons
“Persons displaced from the place of their permanent residence in the territory of the Republic of Azerbaijan to other places within the territory of the country as a result of foreign military aggression, the occupation of certain territories or continuous gunfire shall be considered internally displaced persons subject to the provisions of this Law.”
“The relevant executive authority [the Cabinet of Ministers, the State Committee on Refugees’ Affairs and local executive authorities, within the scope of their respective competence] shall deal with the housing of internally displaced persons. Residential, administrative and auxiliary buildings, as well as other buildings, shall be used for such housing purposes. Where there is no possibility of housing internally displaced persons in such buildings or where the population density in a specific settlement does not allow such a possibility, they shall be settled in camps specially set up for internally displaced persons. ...
Internally displaced persons may be allowed to temporarily settle on their own only if the rights and lawful interests of other persons are not infringed. Otherwise, the relevant executive authority must ensure resettlement of the internally displaced persons to other accommodation...”
“In cases where the temporary settling of internally displaced persons breaches the housing rights of other individuals, the former must be provided with other suitable accommodation.”
B. Criminal Code of 2000
“Incitement of a person who is dependent on the inciter for material, service-related or other reasons to commit or attempt suicide by means of cruel treatment of this person, or by means of systematic denigration of his dignity, or by means of threats
shall be punishable by restraint of liberty for a term of up to three years or by imprisonment for a term of three to seven years.”
C. Code of Criminal Procedure of 2000
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
“Everyone’s right to life shall be protected by law. ...”
1. The parties’ submissions
2. The Court’s assessment
(a) General principles
(i) Principles relating to the prevention of infringements of the right to life: the substantive aspect of Article 2
(ii) Principles relating to the response required in the event of alleged infringements of the right to life: the procedural aspect of Article 2
(b) Application to the present case
(i) Whether the State agents were responsible for Chichek Mammadova’s death
(ii) Whether the investigation was adequate and effective
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Alleged ill-treatment of the applicant
B. Alleged ill-treatment of the applicant’s relatives
C. Alleged violation of the applicant’s right to respect for his private life and home
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
1. Pecuniary damage
2. Non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into New Azerbaijani manats at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 17 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judges Spielmann and Malinverni is annexed to this judgment.
DISSENTING OPINION OF JUDGES SPIELMANN
We agree with the majority that there has in this case been a violation of the respondent State’s obligation under Article 2 of the Convention to conduct an adequate and effective investigation with a view to establishing the extent of the State agents’ responsibility for Chichek Mammadova’s death.
However, unlike the majority, we are of the opinion that in this case the authorities were also responsible for a violation of Article 2 on grounds of failure to comply with the positive obligation incumbent on them to protect the applicant’s wife’s right to life.
In this connection we would like to reiterate that the first sentence of Article 2 enjoins the Contracting 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). This also extends in appropriate circumstances to a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself (see Osman v. the United Kingdom, 28 October 1998, § 115, 1998–VIII; Keenan v. the United Kingdom, no. 27229/95, § 89, ECHR 2001–III; and Renolde v. France, no. 5608/05, § 81, 16 October 2008-).
A failure to comply with this positive obligation will occur where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from self-harm and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Branko Tomašić and Others v. Croatia, no. 46598/06, § 51, ECHR 2009-., and Tanribilir v. Turkey, no. 21422/93, § 70, 16 November 2000).
The principal issue in the present case is whether at some point during the course of the operation the State agents became aware or ought to have become aware that Chichek Mammadova posed a real and immediate risk of suicide and, if so, whether they did all that could reasonably have been expected of them to prevent that risk.
We would like to stress that, as a general rule, in any police operation the police are expected to place the flow of events under their control. In a situation where an individual threatens to take his or her own life in plain view of State agents and where this threat is an emotional reaction directly induced by the State agents’ actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individual’s life, regardless of how unexpected that threat might have been.
In our opinion, in a situation such as the present case, if the State agents become aware of such a threat a sufficient time in advance a positive obligation arises under Article 2 requiring them to prevent the threat from materialising by any means which are reasonable and feasible in the circumstances.
In the context of the present case, as soon as the State agents became aware of the threat, they could have tried to defuse the situation by verbally persuading Chichek Mammadova to refrain from any action threatening her life.
Subsequently, as soon as the poor woman had poured kerosene over herself they should have intervened and prevented her from igniting it. Instead, the police officers did not take her threats seriously. One of them even offered her a box of matches, mockingly encouraging her to keep her word and set fire to herself (see paragraph 17). Incidentally, this detail shows, moreover, that the police officers were near the victim at the time. Only one police officer took any steps to put out the fire by wrapping Chichek Mammadova in a blanket.
In addition, and this circumstance is of particular concern, none of the State agents attempted to call an ambulance or provide any assistance in transporting Chichek Mammadova to hospital.
These shortcomings lead us to the conclusion that the police officers failed to comply with the positive obligations incumbent on them under Article 2, and that there has therefore been a violation of that provision.