European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF MAMMADOV v. AZERBAIJAN

 

(Application no. 36837/11)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

14 February 2019

 

 

 

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

In the case of Mammadov v. Azerbaijan,

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

Síofra O'Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 22 January 2019,

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

PROCEDURE

1. The case originated in an application (no. 36837/11) 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 Ali Mammad oglu Mammadov ( Əli Məmməd oğlu Məmmədov - "the applicant"), on 24 May 2011.

2. The applicant was represented by Mr A. Layijov and Mr B. Sadigov, lawyers practising in Azerbaijan. The Azerbaijani Government ("the Government") were represented by their Agent, Mr Ç. Asgarov.

3. On 12 October 2015 notice of the application was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1961 and lives in Baku.

5. The applicant's son, Urkhan Mammadov (U.M.), was born in 1989. On 7 July 2010 he was drafted into the army for his compulsory military service.

A. Medical examinations and the death of the applicant's son

6. At the request of the military authorities, before joining the army, on 21 May 2010 U.M. underwent a medical examination in Narimanov District Polyclinic no. 8, where it was established that he was suffering from rheumatism. In May and June 2010 U.M. underwent further medical examinations at the Central Oil Workers' Hospital and the Research Institute of Cardiology. During these examinations, no heart disease or any other disease was revealed which might prevent him from performing his military service.

7. On 6 July 2010 U.M. underwent a medical examination at the Narimanov District Military Commissariat (the army recruitment office) which declared him partially fit for military service ( məhdudiyyətlə hərbi xidmətə yararlı ) in accordance with Articles 49 (ç) ( nasal cavity illness ) and 66 (ç) ( spine illness ) of the "Table of Diseases" (" Xəstəliklər cədvəli ").

8. On 7 July 2010 U.M. joined a military unit in Barda region and on an unspecified date he was transferred to a military unit located in Shaki region.

9. On 13 July 2010 U.M. called his family by telephone, asking them to provide him with some belongings. During the conversation he did not complain about his state of health.

10. At around 10 a.m. on 14 July 2010 the applicant was invited to the Narimanov District Military Commissariat, where he was informed of the death of his son.

11. It appears from the case file that at around 5 a.m. on 14 July 2010 at reveille in the dormitory of the military barracks U.M. did not wake up. At that moment the soldiers realised that U.M. was wheezing. They took U.M. out of the military barracks and tried to give him artificial respiration. However, as U.M. did not respond, he was immediately taken to the Shaki Central Hospital, where he was pronounced dead.

B. Criminal investigation

12. On 14 July 2010 a record of an inspection of the scene of the incident ( hadisə yerinə baxış protokolu ) was drawn up and signed by an investigator at the Zagatala Military Prosecutor's Office. It was further signed by two attesting witnesses ( hal şahidi ), S.R. and A.F., who were serving in the same military unit, as well as, by a participant ( iştirakçı ), M.M., who was also serving in the same military unit. The record states that the inspection began at 9 a.m. and ended at noon. According to the record, no object relevant to the investigation was identified. The investigator also noted that U.M.'s bed had been made by other soldiers after U.M.'s transfer to the hospital and the floor of the dormitory had been cleaned with chlorine and kerosene in the morning before the beginning of the inspection.

13. On 14 July 2010 the Zagatala Military Deputy Prosecutor examined U.M.'s body and drew up a record of this inspection ( meyitə baxış keçirilməsi haqqında protokol ) in the presence of two experts. It appears from the record that various injuries were found on U.M.'s body. In particular, the following injuries were mentioned in the record: a blue-violet bruise ( qançır ) of an elongated shape, measuring 8 x 3 cm, on the right side of his lower back; a scratch ( cızıq ), measuring 0.8 x 0.1 cm, on the left side of his back; a subcutaneous haemorrhage ( dəridaxili qansızma ), measuring 5.5 x 1 cm, on his upper right hip; and two abrasions ( sıyrıq ), measuring 0.3 x 0.1 cm and 0.5 x 0.2 cm on the fingers of his left hand. Blood and cell samples were taken from the body and sent for biological and histological forensic examinations. Eighteen photographs of the body were taken during the inspection and were added to the record. The Government provided the Court with a copy of that record, together with black and white versions of these photographs, in which no sign of injury to the body can be seen. The applicant provided the Court with a copy of a colour version of photograph no. 5 added to the record. It appears from this photograph that there was a bruise on the left side of his neck between the ear and the shoulder and a bruise around the left eye. However, there was no mention of such injuries in the record of 14 July 2010.

14. On 12 August 2010 the two experts who had examined U.M.'s body on 14 July 2010 issued report ( akt ) no. 21 on the forensic medical examination ( meyitin məhkəmə-tibbi müayinəsi ) of the body, which was considered as an annex to the record of 14 July 2010. The report was based on the examination of the body on 14 July 2014, as well as on the results of the biological and histological forensic examinations of the samples taken from the body and the opinions of two other specialists. The experts concluded that, taking into consideration that there was no injury which might have caused the death, U.M.'s death had probably resulted from a severe dysfunction of the respiratory system ( kəskin tənəffüs çatışmazlığı ) caused by swelling of the thymus gland and the development of a brain tumour. As for the injuries found on the body, the experts concluded that they were not related to U.M.'s death. They further found that those injuries had been caused by a hard blunt object, that the abrasions, bruise and haemorrhage were likely to have been inflicted one to three days before the death, and the scratch not more than one week before the death.

15. It appears from the documents in the case file that on various dates the investigator in charge of the case questioned a number of soldiers of the military unit in which U.M. had served. The soldiers stated that they had never witnessed any case of ill-treatment during their military service.

16. On 25 August 2010 the investigator ordered a forensic examination. The investigator asked the experts conducting that examination to answer various questions concerning the cause of U.M.'s death and the existence of any relationship between U.M.'s previous health problems and his death. The investigator also asked the experts to establish whether the injuries on U.M.'s body could have been sustained when he had performed physical exercises during his military service or when the soldiers had tried to resuscitate him.

17. On 24 September 2010 the experts issued forensic report no. k/82, which mainly reiterated the findings of the report of 12 August 2010. The experts concluded that U.M.'s death had probably resulted from severe dysfunction of the respiratory system caused by swelling of the thymus gland and the development of a brain tumour, because there was no potentially lethal injury on his body. They further noted that U.M. had probably been suffering from this disease before joining the army, but it had not been possible to reveal it during the medical examinations. As regards the investigator's question concerning the origin of the injuries, the experts noted that as they had not examined the body they could not give a clear answer to that question. However, they pointed out that, taking into consideration the morphological characteristics of the injuries, it was possible from the medical forensic point of view that they could have been sustained when U.M. had been performing physical exercises during his military service or when the soldiers had tried to resuscitate him.

18. On 16 October 2010 an investigator from the Zagatala Military Prosecutor's Office refused to institute criminal proceedings in connection with U.M.'s death. Relying on the forensic medical reports, the investigator concluded that the death had probably resulted from severe dysfunction of the respiratory system caused by swelling of the thymus gland and the development of a brain tumour. He further held that, as U.M. had not complained about his state of health and had had no clear symptoms, it had not been possible to establish the existence of this health problem during the medical examinations that U.M. had undergone before joining the army. As regards the injuries on U.M.'s body, the investigator noted that U.M. had never been ill-treated during his military service and that these injuries could have been sustained when U.M. had been performing physical exercises or when the soldiers had tried to resuscitate him.

19. On 12 November 2010 the applicant lodged a complaint with the Ganja Military Court against the investigator's decision of 16 October 2010, complaining of the ineffectiveness of the criminal investigation. He disputed the investigator's conclusions relating to the cause of his son's death, arguing that U.M. had not been suffering from any disease. In particular, he argued that, if U.M. had really died of the swelling of the thymus gland and a brain tumour, there would have been prior medical symptoms. The applicant further disputed the investigator's explanation as regards the origin of the injuries found on U.M.'s body. In that connection, he submitted that, although the experts concluded that the injuries were likely to have been inflicted one to three days before the death, the investigator held that the injuries could have been sustained when the soldiers tried to resuscitate U.M. on 14 July 2010.

20. On 24 November 2010 the Ganja Military Court dismissed the applicant's complaint. The court reiterated the investigator's findings as regards the cause of the death and the origin of the injuries found on U.M.'s body.

21. On 7 December 2010 the applicant appealed against that decision, reiterating his previous complaints. He complained, in particular, that the criminal investigation had failed to establish clearly the cause of his son's death and the origin of the injuries found on U.M.'s body.

22. On 24 December 2010 the Shaki Court of Appeal dismissed the appeal.

II. RELEVANT DOMESTIC LAW

23. The relevant provisions of the Code of Criminal Procedure are described in detail in the Court's judgment in Mustafayev v. Azerbaijan (no. 47095/09, §§ 37-38, 4 May 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

24. Relying on Articles 2, 3 and 6 of the Convention, the applicant complained about the death of his son during his compulsory military service, and alleged that the domestic authorities had failed to carry out an effective investigation into the circumstances surrounding the death of his son.

25. The Court considers that the applicant's complaints should be examined solely under Article 2 of the Convention (see Malik Babayev v. Azerbaijan , no. 30500/11, § 60, 1 June 2017), the relevant part of which provides:

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

A. Admissibility

26. The Court notes that the application 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. Substantive aspect of Article 2 of the Convention

(a) The parties' submissions

27. The applicant submitted that, although his son had been healthy and was not suffering from any disease, the domestic authorities had found that his son had probably died of severe dysfunction of the respiratory system caused by the swelling of the thymus gland and the development of a brain tumour. In that connection, he argued that the tumour found in U.M.'s head had been the consequence of his having been tortured during his military service and, consequently, the death of U.M. had resulted from torture. In support of his claim, the applicant referred to the existence of a number of injuries on U.M.'s body.

28. The Government contested the applicant's submissions. They referred to the conclusions of the expert reports as regards the cause of the death and the origin of the injuries on U.M.'s body. The Government submitted that U.M. had probably been suffering from the diseases causing his death before joining the army, but it had not been possible to discover them during medical examinations in the absence of any apparent symptoms.

(b) The Court's assessment

29. The Court refers to the general principles established in its case-law set out in the judgment Malik Babayev (cited above, §§ 64-68), which are equally pertinent to the present case.

30. Turning to the circumstances of the present case, the Court observes at the outset that it is undisputed that the death of U.M. was not caused by any lethal use of force by the State and that the forensic examinations revealed the existence of a tumour in U.M.'s head. However, the applicant argued that the tumour found in U.M.'s head had been the consequence of ill-treatment during his military service, and that his death was consequently the result of torture.

31. In that connection, the Court does not see any reason to contest the findings of the domestic authorities that the death of the applicant's son had probably resulted from severe dysfunction of the respiratory system caused by swelling of the thymus gland and the development of a brain tumour (see paragraph 14 above). Having regard to the evidence before it, the Court considers that any allegation that the applicant's son was murdered by other soldiers as a result of ill-treatment and that the tumour in his head had been the consequence of that ill-treatment would be purely speculative (compare Abdullah Yılmaz v. Turkey , no. 21899/02, § 59, 17 June 2008; Durdu v. Turkey , no. 30677/10, §§ 59-61, 3 September 2013; and Malik Babayev , cited above, § 69).

32. As regards the Government's positive obligation, the Court will examine whether the authorities knew or ought to have known of the existence of a real and immediate risk that U.M. would die of severe dysfunction of the respiratory system caused by the swelling of the thymus gland and the development of a brain tumour, and, if so, whether they did all that could reasonably have been expected of them to prevent that risk materialising.

33. The Court notes that, either prior to being drafted into the army or while undergoing his military service, U.M. did not demonstrate any symptoms which could have indicated that he was suffering from any disease which should have alerted the domestic authorities to the possibility that he might die of severe dysfunction of the respiratory system caused by the swelling of the thymus gland and the development of a brain tumour. In particular, the medical examinations conducted before U.M. was drafted into the army did not reveal such a disease. Moreover, the applicant did not claim that U.M. had been suffering from any disease or that he had complained of any health problems during his military service.

34. Therefore, the Court finds that the factual circumstances of the present case give no reason to conclude that the authorities knew or should have known that there was a real and immediate risk to the life of the applicant's son. For those reasons, the Court finds that the present case does not disclose any appearance of a failure on the part of the respondent State to protect the right to life of the applicant's son as required by Article 2 of the Convention.

35. Accordingly, there has been no violation of the substantive limb of Article 2 of the Convention.

2. Procedural aspect of Article 2 of the Convention

(a) The parties' submissions

36. The applicant maintained that the criminal investigation into the death of his son had been ineffective.

37. The Government submitted that the criminal investigation had been effective and had complied with the procedural guarantees provided by the Convention. The domestic authorities had taken all the relevant investigative actions, such as questioning the witnesses and carrying out various forensic examinations.

(b) The Court's assessment

38. The Court refers to the general principles established in its case-law set out in the Malik Babayev judgment (cited above, §§ 79-81), which are equally pertinent to the present case.

39. Turning to the circumstances of the present case, the Court notes that a criminal inquiry was launched by the domestic authorities immediately after the death of the applicant's son, and that on 16 October 2010 the Zagatala Military Prosecutor's Office refused to institute criminal proceedings in connection with U.M.'s death. That decision was upheld by the domestic courts. It remains to be assessed whether the criminal inquiry was effective, as required by Article 2.

40. The Court observes that, although on 14 July 2010 an inspection of the scene of the incident was carried out and evidence was collected by an investigator only a few hours after the incident, the floor of the dormitory had been cleaned and U.M.'s bed had been made before the inspection of the scene of the incident (see paragraph 12 above). This failure to protect the scene of the incident amounted to a serious shortcoming in the criminal investigation and may have prevented the authorities from obtaining a complete and accurate picture of the events leading to U.M.'s death (see Hüseyin Kaplan v. Turkey , no. 20070/08, § 63, 15 October 2013; and Güzelaydın v.Turkey , no. 26470/10, § 88, 20 September 2016).

41. The Court also observes that the investigating authorities failed to take all reasonable steps available to them to secure evidence concerning the death of the applicant's son. In particular, even though it appears from the colour version of photograph no. 5 taken during the inspection of the body that there was a bruise on the left side of the neck between the ear and shoulder and a bruise around the left eye, these injuries were not mentioned in the record of 14 July 2010 (see paragraph 13 above).

42. The Court further notes that the domestic authorities' explanations concerning the origin of the injuries found on U.M.'s body were in part contradicted by the findings of the forensic reports. In particular, the forensic reports' conclusions, which indicated that the abrasions, bruise and haemorrhage were inflicted one to three days before the death, and the scratch not more than one week before the death, excluded the possibility that they had been inflicted when the soldiers had tried to resuscitate U.M. just before his death.

43. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to carry out an adequate and effective investigation into the circumstances surrounding the death of the applicant's son. It accordingly holds that there has been a violation of Article 2 under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. 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

45. The applicant claimed 27,672 Azerbaijani manats in respect of pecuniary damage. He submitted that the amount in question was what he had spent to bring up his son and pay his tuition fees for university.

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

47. The Court does not find any causal link between the damage claimed and the violation found. Accordingly, it rejects the applicant's claims in respect of pecuniary damage.

2. Non-pecuniary damage

48. The applicant claimed EUR 200,000 in respect of non-pecuniary damage.

49. The Government submitted that the applicant's claim was unsubstantiated and excessive.

50. The Court considers that the applicant has suffered non-pecuniary damage for which he cannot be compensated solely by the finding of a violation and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 15,000 under this head, plus any tax that may be chargeable on this amount.

B. Costs and expenses

51. The applicant claimed EUR 2,000 for the costs and expenses incurred in the proceedings before the domestic courts, as well as for transportation, communication, translation and postal expenses.

52. The Government submitted that the applicant's claim for the costs and expenses was unsubstantiated and was not supported by documentary evidence.

53. Regard being had to the documents in its possession and to its case-law, the Court rejects the applicant's claim for costs and expenses as the applicant failed to produce any documentary evidence in support of his claim.

C. Default interest

54. 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. Declares the application admissible;

 

2. Holds that there has been no violation of Article 2 of the Convention under its substantive limb;

 

3. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;

 

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

 

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 14 February 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Síofra O'Leary
Deputy Registrar President