Communicated on 8 June 2017

FIFTH SECTION

Application no. 33184/16 Samuzar Said Gizi BABAYEVA against Azerbaijan lodged on 3 June 2016

STATEMENT OF FACTS

The applicant, Ms Samuzar Babayeva , is an Azerbaijani national, who was born in 1979 and lives in Baku. She is represented before the Court by Mr K. Bagirov , Mr R. Aliyev, Mr S. Rahimli and Ms R. Remezaite , 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. Death of the applicant ’ s brother

The applicant ’ s brother (E.B.) was born in 1983 and was serving a prison sentence in Penal Facility no. 14.

On 22 December 2014 the applicant was informed by a telephone call of the death of her brother, without any further detail concerning the cause of death. The applicant immediately went to the mortuary where she was allowed to see E.B. ’ s body. According to the applicant, there were numerous signs of violence on his body, in particular, on his arms, the sole of his feet, on his neck, spine and face. The applicant took various photographs of E.B. ’ s body.

On the same day, in protest against E.B. ’ s death, a prison riot broke out in Penal Facility no. 14.

On the evening of 22 December 2014 the applicant went to Penal Facility no. 14. asking for more information about the death of her brother. However, she was not provided with any information.

It appears from E.B. ’ s death certificate that the cause of death was acute heart failure.

B. The criminal proceedings

On 10 January 2015 criminal proceedings were instituted by the Garadagh District Prosecutor ’ s Office under Article 309 (excess of official powers) of the Criminal Code.

On 10 February 2015 the investigation was handed over to the Baku City Prosecutor ’ s Office.

In reply to the applicant ’ s numerous letters and requests concerning the ongoing criminal investigation, on various dates the prosecuting authorities informed her that the relevant investigative actions had been taken and that she would be informed of the investigation ’ s results.

On 23 April 2015 the applicant lodged a request with the prosecuting authorities asking for recognition of her victim status. She also asked the prosecuting authorities to re-classify the case under Article 120 (murder) of the Criminal Code, to question various witnesses and to provide her with the relevant documents concerning the ongoing criminal investigation.

By a decision of 30 April 2015 the investigator in charge of the case dismissed the applicant ’ s requests, except for the request for questioning of witnesses.

It appears from the documents in the case file that by a decision of 6 May 2015 the Gusar District Court ordered the exhumation of E.B. ’ s body which was carried out on 21 May 2015.

By a decision of 23 July 2015, entitled assessment of evidence and partial termination of the criminal case, the investigator decided to terminate partially the criminal proceedings, finding that there was no criminal element in the actions of the employees of Penal Facility no. 14. In that connection, the investigator held that there was no link between the death and the injuries found on E.B. ’ s body relying on two forensic reports dated 22 December 2014 and 10 June 2015. It appears from the decision that the above-mentioned forensic reports confirmed the existence of various injuries qualifying them as injuries causing less serious harm to health, but concluded that there was no link between the death and these injuries. As regards the origin of the injuries, the investigator noted that they had been inflicted by prison guards by use of rubber truncheons following breach of disciplinary rules and violent actions of E.B. on 13 December 2014. Moreover, it appears from the decision that on 13 December 2014 E.B. was placed in a disciplinary cell where he was found dead on 22 December 2014. By the same decision, the investigator again refused to grant the applicant victim status and to provide her with the relevant documents concerning the criminal investigation.

By a decision of 5 August 2015 the investigator definitely terminated the criminal proceedings.

On the same day the applicant was informed of the termination of the criminal proceedings.

On 10 August 2015 the applicant requested the investigator to provide her with a copy of the decision terminating the criminal proceedings.

By a letter of 13 August 2015 the investigator dismissed the applicant ’ s request. The investigator found that, as the applicant did not have victim status, she could not obtain a copy of the requested decision.

Relying on Articles 2 and 3 of the Convention, on 5 September 2015 the applicant lodged a complaint with the court against the investigator ’ s decision terminating the criminal proceedings. In particular, she disputed the official version of events, that her brother had died as a result of acute heart failure, arguing that his death had resulted from his torture by prison guards. In support of her claim, the applicant relied on the photographs of E.B. ’ s body taken in the mortuary and various witness statements from former detainees in Penal Facility no. 14. and their relatives . The applicant further asked the court to declare unlawful the prosecuting authorities ’ refusal to grant her victim status and to provide her with the relevant documents relating to the criminal proceedings.

Following a series of procedural decisions, on 23 November 2015 the Sabail District Court dismissed the applicant ’ s complaints. In that connection, the court reiterated the investigator ’ s findings that the use of force against E.B. had been justified because he failed to comply with disciplinary rules and carried out violent actions against prison guards. Relying on the above-mentioned two forensic reports, the court further held that there was no link between the injuries found on E.B. ’ s body and his death.

On an unspecified date the applicant appealed against that decision, reiterating her previous complaints.

On 3 December 2015 the Baku Court of Appeal upheld the first-instance court ’ s decision.

COMPLAINTS

The applicant complains under Article 2 of the Convention that her brother was murdered by prison guards and that the State failed to protect the life of her brother in prison. She also complains that there was no effective investigation into the circumstances surrounding her brother ’ s death.

The applicant also complains under Article 3 of the Convention that her brother was tortured by prison guards and that the domestic authorities failed to investigate the ill-treatment of her brother.

Relying on Article 13 of the Convention, the applicant complains that she had no effective remedies in respect of the c omplaints raised under Articles 2 and 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s brother ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, was the applicant ’ s brother murdered by prison guards? Was the applicant ’ s brother subjected to the use of force by prison guards on 13 December 2014 and afterwards? Was the applicant ’ s brother provided with adequate medical care after the use of force against him? 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 brother been subjected to torture, inhuman or degrading treatment, by prison guards in breach of Article 3 of the Convention? 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?

3. Did the applicant have at her disposal effective domestic remedies in respect of her complaints under Articles 2 and 3, as required by Article 13 of the Convention?

4. The Government are requested to submit copies of all the documents (including forensic reports, photographs, testimony records) relating to the criminal proceedings concerning the death of the applicant ’ s brother.