Communicated on 12 October 2015

FIRST SECTION

Application no. 36837/11 Ali MAMMADOV against Azerbaijan lodged on 24 May 2011

STATEMENT OF FACTS

The applicant, Mr Ali Mammadov, is an Azerbaijani national, who was born in 1961 and lives in Baku.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant ’ s son (U.M.) was called up for military service in July 2010.

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

On 6 July 2010 U.M. underwent a medical examination in the Narimanov District Military Commissariat (the army recruitment office) which declared him fit for military service. U.M. was not provided with a document concerning the result of this medical examination.

On 7 July 2010 U.M. joined his military unit situated in Barda region and on an unspecified date he was transferred to another military unit located in Shaki region. It appears from the order of 9 July 2010 that he was granted the military rank of private soldier ( əsgər ).

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

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.

It appears from the case file that, at around 5 a.m. on 14 July 2010 when the wake-up call was given 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 react, he was immediately taken to the Shaki Central Hospital where it was established that he was dead.

On 14 July 2010 the Zagatala Military Deputy Prosecutor examined the scene of the death and took U.M. ’ s clothes and sample from his fingers. On the same day a record on the inspection of the corpse ( meyitə baxış keçirilməsi haqqında protokol ) was drawn up by the Zagatala Military Deputy Prosecutor in the presence of two experts. It appears from the record that various injuries were found on U.M. ’ s body. In particular, there were abrasions in the palm of his left hand, a bruise and a scratch in the back side of his thorax and a subcutaneous haemorrhage in his right hip. Blood and cell samples were taken from the corpse and were sent for the biological and histological forensic examinations.

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 corpse ’ s forensic medical examination ( meyitin məhkəmə-tibbi müayinəsi ) which was considered as annexe to the record of 14 July 2010. The report was based on the corpse ’ s examination on 14 July 2014, as well as the results of the biological and histological forensic examinations of the samples taken from the corpse and the opinions of the two other specialists. The experts concluded that, taking into consideration that there was no lethal injury which might cause the death, U.M. ’ s death had probably resulted from severe dysfunction of respiratory system ( kəskin tənəffüs çatışmazlığı ) caused by the 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 the injuries had been caused by a hard blunt object, that the time of infliction of the abrasions, bruise and haemorrhage corresponded to one-three days before the death, and that the time of infliction of the scratch corresponded to a period not more than one week before the death.

On 25 August 2010 the investigator in charge of the case ordered a commission forensic examination. The investigator asked the experts to answer various questions concerning the cause of U.M. ’ s death and the existence of any relation between U.M. ’ s previous diseases and his death. The investigator also asked the experts to establish whether the injuries found on U.M. ’ s body could be sustained when he performed physical exercises during his military service or when the soldiers tried to reanimate him.

On 24 September 2010 the experts issued a forensic report 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 respiratory system caused by the swelling of the thymus gland and the development of a brain tumour, because there was no lethal injury on his body. They further noted that U.M. had probably suffered 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 found on the body, the experts noted that, as they had not examined the corpse, they could not give a clear answer to this question. However, they pointed out that, taking into consideration the morphological characteristics of the injuries, it is possible from the medical forensic point of view that they could be sustained when U.M. performed physical exercises during his military service or when the soldiers tried to reanimate him.

Moreover, it appears from the forensic report that when U.M. underwent a medical examination in the Narimanov District Military Commissariat on 6 July 2010, he was declared partially fit for military service ( məhdudiyyətlə hərbi xidmətə yararlı ) in accordance with Articles 66 and 49 of the “Table of Diseases” (“ Xəstəliklər cədvəli ”).

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 respiratory system caused by the 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 this decease had no clear symptoms, it had not been possible to establish its existence during the medical examinations that U.M. had undergone before joining the army. As regards the injuries found 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 be sustained when U.M. performed physical exercises or when the soldiers tried to reanimate him.

On 12 November 2010 the applicant lodged a complaint with the Ganja Military Court against the investigator ’ s decision of 16 October 2010, complaining about the ineffectiveness of the criminal investigation. The applicant disputed the investigator ’ s conclusions relating to the death of his son. He noted that the investigator concluded that his son had died of the swelling of the thymus gland and the development of a brain tumour without any prior medical symptom which was impossible from the medical point of view. In this connection, he submitted that if U.M. had really suffered from the above-mentioned disease, it should have been established during the medical examinations and, consequently, U.M. should have been exempted from military service. He also pointed out that he had never been informed that his son had been declared partially fit for military service following the medical examination of 6 July 2010 . The applicant further complained that, although the experts concluded that the time of infliction of the injuries on U.M. ’ s body corresponded to one-three days before the death, the investigator held that the injuries could be sustained when the soldiers tried to reanimate U.M. on 14 July 2010.

On 24 November 2010 the Ganja Military Court dismissed the applicant ’ s complaint. The court reiterated the investigator ’ s findings and did not address the applicant ’ s particular complaints.

On 7 December 2010 the applicant appealed against this decision. He complained, in particular, that the criminal investigation had failed to establish clearly the cause of his son ’ s death. He further complained that the investigation had failed to examine the question whether it had been lawful to call up U.M. for military service as he had been declared partially fit for it. The applicant also disputed the investigator ’ s conclusions that the injuries found on U.M. ’ s body could be sustained when U.M. performed physical exercises or while the soldiers tried to reanimate him. Lastly, the applicant complained that, although following the death of his son his clothes had been taken by the investigation, they had never been submitted to forensic examination.

On 24 December 2010 the Shaki Court of Appeal dismissed the applicant ’ s appeal.

COMPLAINTS

Relying on Articles 2, 3 and 6 of the Convention, the applicant complains that the right to life of his son was violated and that he was ill-treated during his military service. He further complains that the domestic authorities failed to carry out an effective investigation into his son ’ s death and ill-treatment.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In which circumstances did the applicant ’ s son die? In particular, was the applicant ’ s son fit for military service? Could a person suffering from dysfunction of respiratory system caused by the swelling of the thymus gland and the development of a brain tumour be considered fit for military service ? 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 son been subjected to treatment in breach of Article 3 of the Convention during his military service? 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. The Government are 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 death of the applicant ’ s son. The Government are also requested to submit a copy of the “Table of Diseases” (“ Xəstəliklər cədvəli ”) used for the purposes of military recruitment.