Communicated on 12 October 2015

FIRST SECTION

Application no. 30500/11 Malik BABAYEV against Azerbaijan lodged on 2 May 2011

STATEMENT OF FACTS

The applicant, Mr Malik Babayev , is an Azerbaijani national, who was born in 1966 and lives in Khachmaz . He is represented before the Court by Mr Y. Aliyev , a lawyer practising in Azerbaijan.

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

The applicant ’ s son (Z.B.) was called up for military service in July 2009. He had been serving as a sniper in Gadabay region in military unit no. 171 since October 2009.

On the morning of 14 November 2009 Z.B. was on guard duty. At around 11 a.m. he left his post and went to the nearby forest where two peasants were cutting wood. Z.B. called the applicant by using the telephone of one of the peasants and asked his father to provide him with some belongings. He also asked the applicant to send him a mobile top-up card of 10 Azerbaijani manats . During the telephone conversation he was in a good mood and did not complain about any problem. Z.B. further asked the applicant to say to his mother to leave her mobile telephone turned on as he would call her later. Following this conversation, the applicant bought mobile top-up cards and sent their passwords to his son by a telephone message.

It appears from the case file that, following this telephone conversation, Z.B. returned to the post where he was on guard duty. At around noon on 14 November 2009 the soldiers heard a gunshot and went to the post where they discovered Z.B. ’ s body. They also found a note written on a cigarette pack next to Z.B. ’ s body. The note read as follows:

“I, Z.B., commit suicide and nobody is responsible for that. I commit suicide because I don ’ t want to be a burden to someone. Mom and dad, forgive me. Goodbye to everyone, goodbye to life. Signature. Z.B.”

On an unspecified date criminal proceedings were instituted under Article 125 (incitement to suicide) of the Criminal Code in connection with Z.B. ’ s death. It appears from the case file that on an unspecified date a forensic medical examination was conducted and the conclusion was reached that Z.B. had committed suicide. It was also indicated that the seam of the left pocket of Z.B. ’ s uniform had been unstitched and it could be resulted either from a contact with a hard blunt object or use of physical force. A handwriting examination, which was carried out on an unspecified date, concluded that the note found next to Z.B. ’ s body had been written by him. A post-mortem psychiatric examination concluded that Z.B. had not suffered from any mental disorder, but he had probably been in depression before his death. The soldiers who were questioned by the investigator stated that Z.B. had never been ill-treated during his military service. A soldier (Q.S.) further stated that, when they had been on duty guard on 14 November 2009, Z.B. had been in a bad mood and had told him about his problems with his family and his fiancé. However, another soldier (N.D.) stated that on 14 November 2009 Z.B. had been in a good mood and had told him that he had spoken by telephone to his mother-in-law.

The applicant stated during the investigation that Z.B. had not had a fiancé and that he had not had any family problem. The applicant further stated that Z.B. had not suffered from any mental disorder and that he had had no reason to commit suicide. Moreover, it appears from a letter of 7 December 2009 from the Khachmaz District Police Office that Z.B. had not been engaged to anyone and that he had had no family problem. The two peasants who saw Z.B. on 14 November 2009 also stated during the investigation that he had been in a good mood. It further appears from a letter of 30 November 2009 from the intelligence department of the military unit, signed by a lieutenant colonel (Y.S.), sent to the investigator that on 14 November 2009, before going to the post, Z.B. had a dispute with a soldier (Q.S.) and a sergeant (S.H.) who beat him. Around five minutes after this incident, a gunshot was heard and Q.S., S.H. and another soldier (K.M.) went to the post where they discovered Z.B. ’ s body. It was also indicated in the letter that the soldiers removed Z.B. ’ s body after the incident in order to help him, but when they realised that he was dead they put the body in its initial place.

On 9 February 2010 an investigator at the Gazakh Military Prosecutor ’ s Office decided to terminate the criminal proceedings finding that there was no criminal element in Z.B. ’ s death. The investigator concluded that Z.B. had committed suicide because he had probably been in depression. The investigator further held that it had not been established that Z.B. had been ill-treated by other soldiers. The investigator also decided to destroy the written note found next to Z.B. ’ s body at the end of the investigation.

On 27 February 2010 the applicant lodged a complaint with the Gazakh Military Court against the investigator ’ s decision of 9 February 2010, complaining about the ineffectiveness of the criminal investigation. He disputed the investigator ’ s conclusions relating to the suicide of his son, pointing out that Z.B. had not suffered from any mental disorder. He noted in this regard that the statements of the soldiers were contradictory and had been fabricated as his son had never had a fiancé. The applicant alleged that his son had been either killed or had been driven to suicide by Q.S. and S.H. In this connection, he relied on the content of the letter of 30 November 2009 from the intelligence department of the military unit. He also noted that the fact that the seam of the left pocket of Z.B. ’ s uniform had been unstitched proved that his son had been beaten before his death. The applicant further pointed out that the note found next to Z.B. ’ s body was written with the words that his son had not used. In particular, he noted that, although Z.B. had never called his parents “ ana ” (mom) and “ ata ” (dad), but “ mama ” and “ papa ”, he had addressed to them “ ana ” and “ ata ” in that note. The applicant also complained that his son had been harassed by S.H. who had forced Z.B. to ask regularly the applicant to send mobile top-up cards for S.H. In this connection, he asked for the examination of the the list of calls made to and from his mobile telephone during the entire period when his son had been in military service.

On 18 March 2010 the Gazakh Military Court quashed the investigator ’ s decision and remitted the case for a new examination. The court ordered the investigating authority to examine the applicant ’ s complaints. The court further found that the investigator could not decide to destroy the written note found next to Z.B. ’ s body which constituted a material proof.

On 29 March 2010 the same investigator again decided to terminate the criminal proceedings. Except the part of the decision concerning the preservation of the note in the case file, the text of the decision was identical in its wording to the investigator ’ s previous decision of 9 February 2010.

On 10 April 2010 the applicant lodged a complaint with the Military Prosecutor of the Republic of Azerbaijan against this decision. He complained about the ineffectiveness of the criminal investigation pointing out that, taking into consideration that there had been a bank holiday in the country from 20 to 28 March 2010, it had been impossible to carry out a new investigation from 18 to 29 March 2010.

It appears from the case file that on 21 April 2010 the Military Prosecutor of the Republic of Azerbaijan quashed the investigator ’ s decision of 29 March 2010 and remitted the case for a new examination. The case was allocated to another investigator at the Gazakh Military Prosecutor ’ s Office.

On 18 June 2010 the investigator in charge of the case decided to terminate the criminal proceedings. The investigator found that the allegation of Z.B. ’ s ill-treatment by Q.S. and S.H. had not been proved during the investigation. The investigator further found that the fact that the seam of the left pocket of Z.B. ’ s uniform had been unstitched did not prove that Z.B. had been ill-treated and it could be resulted from the contact of Z.B. with the gun during the suicide.

On 13 July 2010 the applicant lodged a complaint against this decision, reiterating his previous complaints. He also noted that the investigator ’ s decision of 18 June 2010 was almost identical in its wording to the previous decisions of the investigating authority. He further complained that the new investigator had failed to question Q.S. and S.H. and to address the contradiction in the statements of the soldiers.

It appears from the case file that on 23 July 2010 the Military Prosecutor of the Republic of Azerbaijan again quashed the investigator ’ s decision and remitted the case for a new examination.

On 20 September 2010 the investigator again decided to terminate the criminal proceedings finding that there was no criminal element in Z.B. ’ s death. It appears from the investigator ’ s decision that by a new letter of 10 September 2010 the intelligence department of the military unit informed the investigator that, although it had previously indicated in its letter of 30 November 2009 that Z.B. had been beaten by Q.S. and S.H., this allegation had not been subsequently established.

On 9 October 2010 the applicant lodged a complaint against this decision with the Military Prosecutor of the Republic of Azerbaijan. He reiterated his previous complaints, noting that the investigator had tried to cover those who had ill-treated and had driven his son to suicide. He further noted that the investigator had not interviewed Q.S. and S.H. who had beaten Z.B. before the incident and had made false statements concerning the alleged family problems of Z.B.

On 15 October 2010 the Deputy Military Prosecutor of the Republic of Azerbaijan dismissed the applicant ’ s complaint, finding that the criminal investigation had been effective.

On 1 November 2010 the applicant lodged a complaint against this decision with the Baku Military Court, complaining that the investigator had failed to carry out an effective investigation. He complained that the investigator had failed to question Q.S. and S.H. and to examine the contradiction in the statements of the soldiers. He further noted that the appearance of a new letter from the intelligence department of the military unit which clearly contradicted the previous letter of the same organ showed that the authorities had tried to cover Q.S. and S.H. who had beaten his son.

On 13 November 2010 the Baku Military Court dismissed the applicant ’ s complaint. The court found that the applicant ’ s complaints were groundless without further explanation.

On 29 December 2010 the Baku Court of Appeal dismissed the applicant ’ s appeal and upheld the Baku Military Court ’ s decision of 13 November 2010.

COMPLAINTS

Relying on Articles 2, 3 and 6 of the Convention, the applicant complains that the right to life of his son was violated because he was driven to suicide as a result of his ill-treatment 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? 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? In particular, were all the actors who could give evidence in respect of the circumstances of the applicant ’ s son ’ s death, including the lieutenant colonel (Y.S.) from the intelligence department of the military unit, questioned during the investigation? Were a reconstruction of the scene of the incident and a visit of the scene of the incident conducted during the investigation?

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.