Communicated on 27 August 2014

FIRST SECTION

Application no. 35432/07 Novruzali Khanmammad Oglu MAMMADOV and others against Azerbaijan lodged on 13 August 2007

STATEMENT OF FACTS

The case originated in an application (no. 35432/07) 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 Mr Novruzali Mammadov (Novruzali Mammadov is referred to as “the applicant”) on 13 August 2007.

Mr Novruzali Mammadov was an Azerbaijani national of Talish origin who was born in 1942. He was represented before the Court by Mr R. Mammadov, a lawyer practising in Azerbaijan.

On 17 August 2009 Mr Novruzali Mammadov died in prison. By a letter of 25 August 2009 his wife and his son, Ms Maryam Mammadova (the second applicant) and Mr Emil Mammadov (the third applicant), expressed their wish to pursue the applicant ’ s application submitted on 13 August 2007. They were represented before the Court by the same lawyer, Mr R. Mammadov.

On 29 September 2009 an application was lodged by the applicant ’ s lawyer on behalf of Mr Novruzali Mammadov. On 11 May 2010 Ms Maryam Mammadova and Mr Emil Mammadov lodged on their own behalf a new application in connection with Mr Novruzali Mammadov ’ s death in prison. Those applications with accompanied submissions were added to the original application.

On 16 April 2011 Mr Emil Mammadov died.

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

A. The first applicant ’ s arrest and administrative detention

The applicant was a linguist and worked at the Linguistic Institute of the Academy of Sciences of the Republic of Azerbaijan. He carried out scientific research on Talish language. He was also the editor-in-chief of “Talishi Sedo”, a bilingual Azerbaijani-Talish newspaper, and regularly published articles in that newspaper.

At around 4 p.m. on 2 February 2007 the applicant was arrested by agents of the Ministry of National Security (“the MNS”) at the Javid park in Baku. He was taken to the premises of the MNS where he was questioned during twenty-three hours about his alleged collaboration with the Iranian intelligence service. He was deprived of water and food and was kept awake. He was also subjected to physical violence.

At around 4 p.m. on 3 February 2007 the MNS ’ s agents took the applicant by car to the area near the metro station Elmler Akademiyasi and released him there. The applicant was not provided with any document concerning his detention.

Immediately after his release while the applicant crossed the road, a police officer approached and arrested him because of his alleged obstructing the police. The applicant was taken to Yasamal District Police Station no. 28. where a record on an administrative offence was drawn up by police officers. The applicant refused to sign the record.

On the same day the applicant was taken to the Yasamal District Court and appeared before a judge. The judge found the applicant guilty under Article 310 (obstructing the police) of the Code of Administrative Offences and sentenced him to fifteen days ’ administrative detention.

On 5 February 2007 the applicant ’ s lawyer appealed against this decision. He noted that the applicant ’ s administrative conviction had been totally unjustified and that the first-instance court had not examined any evidence proving the applicant ’ s guilt. The lawyer also asked the court to ensure the applicant ’ s presence at the hearing. He further noted that the applicant had been ill-treated on the premises of the MNS as there were bruises on his left arm and asked the court to order the applicant ’ s forensic examination.

On 9 February 2007 the Court of Appeal upheld the first-instance court ’ s decision and dismissed the applicant ’ s appeal without replying to his particular requests and complaints. The hearing was held in the lawyer ’ s presence, but in the applicant ’ s absence.

During his administrative detention the applicant was detained on the premises of the MNS. However, despite numerous requests from the applicant ’ s lawyer and family to the MNS, the Prosecutor General ’ s Office and the Ministry of Internal Affairs, the applicant ’ s family was not informed of the applicant ’ s place of detention until 17 February 2007. In particular, in reply to the above-mentioned requests, by a letter of 9 February 2007 the MNS and by a letter of 16 February 2007 the Ministry of Internal Affairs informed the applicant ’ s family that the applicant had not been detained on their premises.

B. The first applicant ’ s ill-treatment and remedies used

Following his administrative conviction the applicant was returned to the premises of the MNS where he was again ill-treated by agents of the MNS between 3 and 17 February 2007. During this period, although he suffered from hypertension and prostatitis, he was not provided with the relevant medicaments. He was questioned in general at night and no record of questioning was drawn up. He was given false information about his family according to which his two sons were also arrested and detained in the next cells and that his wife was hospitalised and suffered from a heavy disease. He was not provided with clean clothes during this period.

On 15 February 2007 the second applicant lodged a request with the Prosecutor General asking for the applicant ’ s forensic examination in the presence of his lawyer.

It appears from the case file that following the complaint of 15 February 2007, on 7 April 2007 the investigator ordered the applicant ’ s forensic examination. According to the forensic report of 13 April 2007, the applicant complained of having been ill-treated on the premises of the MNS on 2 February 2007 and complained of pains in his left shoulder. However, the expert concluded that there were not currently any objective sign of injury to the applicant ’ s body.

On 8 October 2007 the applicant brought an action, with the Sabail District Court, asking the court to find violations of his rights protected under Articles 3, 5 and 14 of the Convention. In this regard, he alleged, inter alia , that he had been unlawfully arrested and detained by agents of the MNS on 2 February 2007, that he had been ill-treated by agents of the MNS between 2 and 17 February 2007 and that he had been discriminated against on the ground of his ethnic origin.

The Sabail District Court examined the applicant ’ s action under the procedure established by Articles 449-451 of the Code of Criminal Procedure concerning appeals against the prosecuting authorities ’ actions and decisions. On 18 October 2007 the court dismissed the applicant ’ s claim without replying to any of his particular claims.

On 24 October 2007 the applicant appealed against this decision reiterating his previous complaints.

On 16 November 2007 the Baku Court of Appeal upheld the decision of 18 October 2007. The appellate court ’ s decision was not subject to further appeal.

C. Institution of criminal proceedings against the first applicant and his remand in custody

On 17 February 2007 the applicant was informed that he was being charged with high treason under Article 274 of the Criminal Code.

On the same day the Sabail District Court ordered the applicant ’ s detention for a period of three months. The judge substantiated the necessity of this measure by the gravity of the applicant ’ s alleged criminal acts and the possibility of his absconding and obstructing the investigation.

On an unspecified date the applicant appealed against the Sabail District Court ’ s decision of 17 February 2007, complaining about the lack of justification for application of the preventive measure of detention on remand. He argued that the judge had failed to take into consideration his social status, age, place of residence or other personal circumstances when he had ordered his detention.

On 1 March 2007 the Court of Appeal dismissed his appeal, holding that the detention order was justified.

On 12 May 2007 the Sabail District Court extended the applicant ’ s detention until 3 August 2007. As justification for the extension of the detention period, the court relied on the gravity of the charges and on the fact that the investigation should carry out other investigative actions . The applicant appealed against this decision noting that he had not committed any crime and that there was no reason to hold him in detention.

On 31 May 2007 the Court of Appeal upheld the first-instance court ’ s decision.

On 28 July 2007 the Sabail District Court extended the applicant ’ s detention until 3 December 2007. The judge substantiated the necessity of this extension on the grounds that a number of investigative actions needed to be carried out and thus more time was needed to complete the investigation.

On 3 August 2007 the Baku Court of Appeal upheld the first-instance court ’ s decision. The appellate court substantiated the necessity of this extension by the gravity of the applicant ’ s alleged criminal acts and the possibility of his absconding and obstructing the investigation.

On 15 November 2007 the prosecutor lodged the indictment with the Assize Court.

On 7 December 2007 the Assize Court held a preliminary hearing. The applicant ’ s lawyer complained at the hearing that the applicant had been ill-treated and had been detained unlawfully on the premises of the MNS and asked the court to remit the case to the investigation for a new examination. The lawyer further complained that despite the fact that the applicant ’ s pre-trial detention period had expired on 3 December 2007, he had not been released from detention. On the same day the Assize Court rejected the applicant ’ s requests. The court further decided that the preventive measure of remand in custody in respect of the applicant should remain “unchanged”.

In the course of the proceedings before the Assize Court, the applicant proclaimed his innocence and denied having been involved in any crime. He also reiterated his previous complaints claiming the violation of his rights protected under Articles 3, 5 and 14 of the Convention. In this regard, he alleged, inter alia , that he had been ill-treated by agents of the MNS between 2 and 17 February 2007, that he had been unlawfully arrested and detained by agents of the MNS and that he had been discriminated against on the ground of his ethnic origin.

It appears from the case file that on 5 March 2008 the Assize Court ordered the applicant ’ s forensic examination asking the expert to clarify the conclusions of the forensic report of 13 April 2007. Following the applicant ’ s examination, the expert concluded in his report of 4 April 2008 that there was not any objective sign of injury to the applicant ’ s body. The expert also pointed out that the applicant ’ s pain in his left shoulder was not noticed in the conclusions of the forensic report of 13 April 2007 as it did not constitute an objective sign of injury. However, the expert further noted that during the examination of 3 April 2008 the applicant complained of pains in his left shoulder and these pains had an effect on the fourth finger of the applicant ’ s left arm.

On 5 March 2008, following a request from the applicant ’ s lawyer, the Assize Court requested the MNS to inform the court, inter alia , whether the applicant had been on the premises of the MNS on 2, 3 and 9 February 2007, whether he had been questioned on the premises of the MNS on 9 February 2007, whether he had been subjected to a medical examination and what had been his diagnosis.

In reply to the Assize Court ’ s letter of 5 March 2008, by a letter of 16 April 2008, the MNS informed the Assize Court that following the examination of the applicant by the military medical establishment of the MNS he was diagnosed with hypertension and was subjected to the relevant treatment. However, the MNS ’ s letter was silent as to the Assize Court ’ s information requests concerning the applicant ’ s presence on the premises of the MNS on 2, 3 and 9 February 2007.

On 24 June 2008 the Assize Court convicted the applicant of high treason and sentenced him to ten years ’ imprisonment with confiscation of his property. As to the applicant ’ s particular complaints, the Assize Court relying on the forensic reports of 13 April 2007 and of 4 April 2008, held that there was no objective sign of injury to the applicant ’ s body. However, the Assize Court was silent as to the remainder of the applicant ’ s complaints.

The applicant appealed against this judgment, proclaiming his innocence. He complained that there was no evidence that he had participated in any crime of high treason. The applicant also maintained that his rights protected under Articles 3, 5, 6, 10, 13 and 14 of the Convention had been violated.

On 26 December 2008 the Baku Court of Appeal upheld the Assize Court ’ s judgment of 24 June 2008.

On 27 May 2009 the Supreme Court upheld the Baku Court of Appeal ’ s judgment of 26 December 2008.

D. The first applicant ’ s conditions of detention and death in prison

On 14 January 2009 the head of the penitentiary establishment No. 15 decided the applicant ’ s placement in a punishment cell for a period of fifteen days.

It appears from the case file that following the intervention of the Azerbaijani Committee against Torture, on 21 January 2009 the applicant was transferred to a normal cell.

On 26 January 2009 and on 19 February 2009 the applicant ’ s lawyer wrote to the head of the penitentiary establishment No. 15 complaining about the applicant ’ s conditions of detention. He noted that the applicant had been placed in a punishment cell for a period of fifteen days without any reason and asked for a copy of the decision on the applicant ’ s placement in a punishment cell. The lawyer further submitted that although the applicant suffered from different diseases, he was not provided with adequate medical assistance.

On 23 February 2009 the applicant ’ s lawyer lodged an action with the Nizami District Court complaining about the applicant ’ s conditions of detention and the violation of the applicant ’ s rights protected under Articles 3 and 13 of the Convention. In particular, he pointed out that the applicant had not been provided with adequate medical assistance and had been unlawfully placed in a punishment cell.

On 6 March 2009 the Nizami District Court partially granted the applicant ’ s claim holding that the applicant ’ s placement in a punishment cell had been unlawful. The court also found that the applicant had not been subjected to a medical examination upon his arrival at the prison and ordered the penitentiary establishment to carry out a medical examination of the applicant and to provide him with adequate medical care.

On 29 March 2009 the applicant appealed against this decision noting that the first-instance court had failed to acknowledge the violation of his rights protected under Articles 3 and 13 of the Convention. In particular, he noted that he had been detained from 14 to 21 January 2009 in a punishment cell which was windy, wet and not heated. The applicant also pointed out that the cell was not naturally lighted and that he had not been provided with relevant clothes. During this period, he was obliged to stand up from 5 a.m. to 9 p.m. every day as there was no chair in the cell.

On 16 April 2009 the Baku Court of Appeal dismissed the appeal. This decision was not subject to any appeal.

On 25 July 2009 the applicant was placed in the medical department of the penitentiary establishment.

On 17 August 2009 the applicant died. According to the death certificate, the death resulted from cerebral infarction.

1. The criminal proceedings concerning the first applicant ’ s death

On 18 August 2009 the Deputy Prosecutor of the Nizami District Prosecutor ’ s Office ordered a forensic examination of the applicant ’ s body for the establishment of the reason for death.

By a forensic report of 18 August 2009 the expert concluded that the applicant ’ s death resulted from cerebral infarction.

It appears from the case file that the second applicant lodged a request with the prosecutor claiming that the applicant died in prison because he had not been provided with adequate medical treatment and that numerous diseases appeared following the applicant ’ s placement in a punishment cell between 14 and 21 January 2009.

On 31 August 2009 the Deputy Prosecutor of the Nizami District Prosecutor ’ s Office ordered a commission forensic examination. The prosecutor asked the experts to establish whether the applicant had been provided with adequate medical assistance, whether his diseases had been correctly diagnosed and whether his death resulted from the lack of adequate medical treatment.

The experts concluded that although the applicant had suffered from numerous diseases his death resulted from cerebral infarction and was not related to the medical treatment. They further concluded that the applicant ’ s diseases had been correctly diagnosed and treated.

On 28 September 2009 the Deputy Prosecutor of the Nizami District Prosecutor ’ s Office refused to initiate criminal proceedings in connection with the applicant ’ s death in prison. He relied in this respect on the above-mentioned two forensic expert reports.

On 21 October 2009 the second and third applicants lodged a complaint against that decision with the Nizami District Court asking the court to quash the prosecutor ’ s decision of 28 September 2009. They claimed that the applicant had not been provided with adequate medical assistance in prison, that his unlawful placement in a punishment cell on 14 January 2009 had resulted in the development of numerous diseases and that the applicant had been placed in the medical department of the penitentiary establishment only on 25 July 2009.

On 2 November 2009 the Nizami District Court dismissed the applicant ’ s complaint. The court found that the applicant had been provided with adequate medical care. It further noted that although his transfer to the medical department of the penitentiary establishment had been proposed on several occasions before 25 July 2009, he rejected these proposals.

On 5 November 2009 the second and third applicants appealed against that decision reiterating their previous complaints.

On 17 November 2009 the Baku Court of Appeal dismissed the appeal. This decision was not subject to any appeal.

2. The civil proceedings concerning the first applicant ’ s death

On 14 September 2009 the second and third applicants lodged a civil action with the Nasimi District Court complaining about the violation of the applicant ’ s right to life. In particular, they claimed that the applicant died in prison because he had not been provided with adequate medical treatment and that the State had failed to comply with its positive obligations to protect the applicant ’ s life. In this connection, they pointed out that, despite the Nizami District Court ’ s judgment of 6 March 2009 ordering the penitentiary establishment to provide the applicant with adequate medical assistance, the applicant was transferred to the medical department of the penitentiary establishment only on 25 July 2009.

On 25 November 2009 the Nasimi District Court ordered a commission forensic examination asking the experts to establish whether the diseases from which the applicant suffered had appeared in prison and whether he had been provided with adequate medical assistance and his medical treatment had been appropriate.

On 17 December 2009 the experts concluded that the diseases from which applicant suffered appeared as a consequence of a long term pathological process and therefore they could not appear during the applicant ’ s detention. They further concluded that the applicant had been correctly diagnosed and treated.

On 27 January 2010 the Nasimi District Court dismissed the claim relying on the conclusions of the commission forensic report.

On 1 March 2010 the second and third applicants appealed against the first-instance court ’ s judgment reiterating their previous complaints.

On 1 June 2010 the Baku Court of Appeal dismissed the appeal.

On 6 October 2011 the Supreme Court upheld the Baku Court of Appeal ’ s judgment.

COMPLAINTS

A. Complaints raised in the application lodged on 13 August 2007 by Mr Novruzali Mammadov

The applicant complains under Article 3 of the Convention that he was ill-treated by agents of the MNS between 2 and 17 February 2007 and that the domestic authorities failed to effectively investigate his allegations of ill-treatment.

The applicant complains under Article 5 of the Convention that his detention between 4 p.m. on 2 February 2007 and 4 p.m. on 3 February 2007 on the premises of the MNS amounted to a deprivation of liberty and was unlawful.

The applicant also complains under Article 5 of the Convention that his right to liberty was violated, because there was no reason for application of remand in custody as a preventive measure and that the domestic courts failed to justify the extension of his pre-trial detention period. He also complains that the hearings concerning the extension of his pre-trial detention was held in his and his lawyer ’ s absence and that the judges failed to examine his arguments against the extension of the pre-trial detention.

Relying on Articles 13 and 14 of the Convention, the applicant complains that he had no effective domestic remedies in respect of his complaints and that he was discriminated against on the ground of his ethnic origin.

B. Complaints raised in the application lodged on 11 May 2010 by Ms Maryam Mammadova and Mr Emil Mammadov

The second and third applicants complain under Article 2 of the Convention that the State failed in its obligation to protect the first applicant ’ s right to life. In particular, they allege that despite the fact that the first applicant suffered from numerous diseases, he was not provided with the adequate medical assistance and as a result he died in prison. They further complain that there was no effective investigation into the death of the first applicant.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In which circumstances did he die? In particular, was the applicant provided with the adequate medical care from 2 February 2007 until his death? 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 been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, did the MNS ’ s agents use force against the applicant on 2 February 2007? Was the applicant provided with the relevant medicaments and clean clothes between 2 and 17 February 2007? Having regard to the procedural protection from 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. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? Was the alleged deprivation of liberty from 4 p.m. on 2 February 2007 to 3 p.m. on 3 February 2007 compatible with the requirements of Article 5 of the Convention?

4. Was the extension of the applicant ’ s pre-trial detention in conformity with Article 5 § 3 of the Convention?

5. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? Were the applicant and his lawyer able to be present at the hearings on the extension of the applicant ’ s pre-trial detention?

The Government are requested to submit copies of all documents, such as forensic reports, medical prescriptions, medical certificates and records, testimony records or any other document relating to the applicant ’ s medical treatment in prison.