European Court of Human Rights

FIRST SECTION

CASE OF ABDULLAYEV v. AZERBAIJAN

(Application no. 24950/14)

JUDGMENT
 

STRASBOURG

12 October 2023

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

In the case of Abdullayev v. Azerbaijan,

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

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 24950/14) 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") on 5 March 2013 by an Azerbaijani national, Mr Elshad Islam oglu Abdullayev (Elşad İslam oğlu Abdullayev - "the applicant"), who was born in 1954, lives in Mennecy, France, and was represented by Mr A. Ismayilov, a lawyer practising in Azerbaijan.

the decision to give notice of the application to the Azerbaijani Government ("the Government"), represented by their Agent, Mr Ç. Əsgərov;

the parties' observations;

Having deliberated in private on 19 September 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged failure of the State authorities to carry out an effective investigation into the disappearance of the applicant's brother, M.A.

2.  At the time of the events described below, the applicant was the owner and president of a private university based in Baku.

3.  On 13 October 2003 M.A., who was an official of the then Ministry of National Security ("the MNS"), left home and never returned.

4.  As the applicant had no information as to his brother's whereabouts, on 14 October 2003 he lodged a criminal complaint with the Yasamal District Police Office ("the YDPO") in relation to M.A.'s disappearance.

5.  On 24 October 2003 the YDPO refused to institute criminal proceedings, having concluded that M.A.'s disappearance had not involved any criminal activity.

6.  Following an appeal by the applicant against that decision, on 14 November 2003 criminal proceedings were instituted under Article 144.2.6 (kidnapping) of the Criminal Code by the Baku City Prosecutor's Office in connection with M.A.'s disappearance.

7.  On 17 November 2003 M.A.'s abandoned car was found in Baku.

8.  On 24 January 2004 the applicant was granted victim status.

9.  On 6 January 2005 the criminal case was reclassified under Article 120.1 (murder) of the Criminal Code and its investigation was handed over to the Serious Crimes Department of the Prosecutor General's Office.

10.  In reply to numerous letters and requests from the applicant concerning the ongoing criminal investigation in which he expressed suspicions that his brother had been kidnapped by an organised criminal group allegedly consisting of law-enforcement officials and protected by high-level State officials, the prosecuting authorities informed him, on various dates, that the documents he had submitted had been added to the case file and that he would be informed of the investigation's results.

11.  On 24 September 2010 the applicant emigrated from Azerbaijan to France.

12.  In a letter dated 17 July 2012 the applicant's lawyer asked the prosecuting authorities to provide the applicant with information about the progress of the investigation. In particular, the lawyer pointed out that the applicant had still not been informed of the progress of the investigation or of any decisions that had been taken. He also asked the investigating authorities to provide him with copies of the relevant documents.

13.  By a decision dated 27 July 2012, the investigator dismissed the request. In particular, relying on Articles 87 and 102 of the Code of Criminal Procedure ("the CCrP"), the investigator found that a victim or his or her representative could only have access to a case file and the relevant documents following the termination of the preliminary investigation.

14.  The applicant lodged a complaint with the Nasimi District Court against the investigator's decision, asking the court to order the investigator to provide him with the relevant documents. The complaint was lodged under the procedure established by Article 449 of the CCrP providing for the possibility to challenge the actions or decisions of the investigating authorities before the domestic courts.

15.  By a decision of 23 August 2012, the Nasimi District Court dismissed the applicant's complaint, holding that that kind of decision of the prosecuting authorities could not be challenged before the courts. That decision was upheld by the appellate court.

16.  It appears that no active investigative steps were taken by the investigating authorities between June 2005 and May 2009 and between April 2010 and October 2012.

17.  On 4 October 2012, given that over a lengthy period of time the previous investigative bodies had failed to establish the circumstances of M.A.'s disappearance, an independent operational investigative group ("the investigative group") was established under the authority of the Prosecutor General with a view to furthering the criminal investigation.

18.  It appears from the documents in the case file that at various times during the investigation the investigating authorities questioned multiple witnesses (in some cases, on a number of occasions) regarding the circumstances of M.A.'s disappearance. Those witnesses included M.A.'s relatives, friends and acquaintances, as well as people with whom he had had contact and telephone conversations. However, the authorities ultimately failed to establish the whereabouts of M.A. and the exact circumstances of his disappearance or alleged kidnapping and murder.

19.  According to the documents provided by the Government, the latest active investigative steps in respect of M.A.'s disappearance were taken by the investigative group in June 2013.

20.  The applicant complained under Articles 2, 6 and 13 of the Convention of the allegedly ineffective investigation into his brother's disappearance, particularly the authorities' failure to establish who was behind the disappearance and to inform him about the progress of the investigation, as well as the excessive length of the criminal investigation. He also complained under Article 3 of the Convention of the suffering he had had to endure because of the uncertainty regarding his brother's fate. In his observations, the applicant lodged a further complaint, arguing that there had been a hindrance to the exercise of his right of individual application under Article 34 of the Convention as there had been a delay in the delivery of letters from the Court and one of his letters sent to the Court had been lost.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION under its procedural limb

21.  Having regard to the circumstances of the case, the Court considers that the applicant's complaints under Articles 6 and 13 of the Convention do not raise a separate issue and fall to be examined under Article 2 of the Convention.

22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

23.  The general principles concerning the State's obligation to put in place effective criminal-law provisions to deter the commission of offences against the person have been summarised in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82 and 225, 14 April 2015).

24.  In this connection the Court reiterates that the investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible (see Hanan v. Germany [GC], no. 4871/16, § 202, 16 February 2021). At the same time the procedural obligation under Article 2 of the Convention is not an obligation of result, but of means (ibid.). Moreover, although a requirement of promptness and reasonable expedition is implicit in this context, it must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation.

25.  Turning to the circumstances of the present case, the Court notes that although a number of investigative steps were taken by three separate investigative bodies during the course of over ten years following the institution of criminal proceedings in relation to the disappearance of M.A. on 14 November 2003, the circumstances of his disappearance and his whereabouts remained unknown at the time of the most recent communication with the parties in 2018.

26.  Having regard to the material in the case file, the Court observes a number of shortcomings in the criminal investigation carried out by the domestic authorities.

27.  At the outset, the Court notes that, despite the fact that the applicant complained about the disappearance of his brother on 14 October 2003, a day after his brother had last been seen, the investigating authorities initially refused to institute criminal proceedings in relation to the matter. Only after the applicant's further complaints were criminal proceedings instituted on 14 November 2003, a month after M.A. had disappeared. The lapse of time between the applicant's initial complaint and the institution of criminal proceedings prevented the authorities from acting promptly and from collecting any relevant evidence while it might still have been potentially available.

28.  Furthermore, in his numerous submissions to various authorities the applicant alleged that his brother had been kidnapped and murdered by an organised criminal group acting under the aegis of certain high-ranking State officials. Despite these serious allegations, it does not appear that the investigating authorities attempted to pursue this line of inquiry in a timely manner. They also failed to substantiate why they considered the applicant's requests regarding the above-mentioned allegations groundless.

29.  Moreover, the Court observes that, even though the applicant had been granted victim status in the investigation, the investigating authorities denied him access to the case file during the investigation (see paragraph 13 above). Although in their observations the Government pointed out that a close relative of the applicant's, who was an employee of the MNS, had participated in the criminal investigation following the establishment of the investigative group and thus had had access to the case file, the Court does not consider this of particular relevance, as the applicant, who had victim status, was obstructed from directly (or through his lawyer) obtaining information about the progress of the investigation and copies of relevant documents from the case files. The Court deems it necessary to reiterate that it cannot accept the investigating authorities' reliance on the domestic law to justify such a situation and finds it unacceptable that under the relevant domestic law, the applicant and his lawyer had no access whatsoever to the case file during the investigation, since such a state of affairs deprives the investigation of an important guarantee, that of the involvement of the family of the deceased or disappeared person (see Huseynova v. Azerbaijan, no. 10653/10, § 113, 13 April 2017, and Tagiyeva v. Azerbaijan, no. 72611/14, § 73, 7 July 2022).

30.  Lastly, the Court considers that the criminal investigation was not carried out promptly, taking into account its overall length and the fact that the authorities remained largely inactive for lengthy periods of time (see paragraphs 16 and 19 above).

31.  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 disappearance of the applicant's brother.

32.  There has accordingly been a violation of Article 2 of the Convention under its procedural limb.

2. other complaints

33.  Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that there is no need to examine either the admissibility and merits of the complaint under Articles 3 or the complaint under 34 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

34.  The applicant claimed 3,630,000 United States dollars in respect of pecuniary damage, stating that he had made payments amounting to this sum to different individuals as bribes in order to obtain assistance in the search for his brother.

35.  The Government contested that amount as unsubstantiated.

36.  The Court does not discern any causal link between the violation found and the pecuniary damage claimed by the applicant. It therefore rejects this claim.

37.  The applicant also claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

38.  The Government submitted that the finding of a violation would constitute in itself sufficient reparation for any non-pecuniary damage sustained.

39.  The Court considers that the applicant must have sustained non-pecuniary damage which is not sufficiently compensated for by the finding of a violation. Ruling on an equitable basis, it awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

40.  The applicant further claimed 6,600 Azerbaijani manats for legal services incurred before the domestic courts and the Court, EUR 6,200 for translation expenses and EUR 70 for postal costs.

41.  The Government argued that, as the applicant had failed to produce any evidence that the legal costs had actually been incurred, his claim under that head should be dismissed. They further argued that the claim in respect of postal costs had not been properly substantiated by relevant supporting documents and that the claims in respect of translation costs were excessive and had not been reasonably incurred in connection with the translated documents.

42.  Having regard to the documents in its possession, the Court considers it reasonable to award the sum of EUR 70 to the applicant, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 2 of the Convention admissible;
2. Holds that there has been a violation of Article 2 of the Convention under its procedural limb;
3. Holds that there is no need to examine the admissibility and merits of the complaint under Article 3 of the Convention;
4. Holds that there is no need to examine the complaint under Article 34 of the Convention;
5. Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 70 (seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

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

Done in English, and notified in writing on 12 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Liv Tigerstedt Krzysztof Wojtyczek
 Deputy Registrar President