Communicated on 22 January 2014

FIRST SECTION

Application no. 47095/09 Zeynal MUSTAFAYEV against Azerbaijan lodged on 20 August 2009

STATEMENT OF FACTS

The applicant, Mr Zeynal Mustafayev , is an Azerbaijani national, who was born in 1937 and lives in Sumgayit . He is represented before the Court by Mr A. Mustafayev , a lawyer practising in Azerbaijan .

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

The applicant ’ s son (M.M.) was born in 1967 and was serving a life sentence in Gobustan Prison. He was held with one other inmate (S.R.) in cell no. 94 designated for two inmates .

Since June 2006 M.M. had sent complaints to various domestic authorities, including the Ministry of Justice , the Office of the Prosecutor General and the Ombudsman of the Republic of Azerbaijan . He complained in particular about his conditions of detention, violation of inmates ’ rights in Gobustan Prison and his ill-treatment by prison guards noting that his life was in danger.

On 2 December 2006 S.R. left cell no. 94 for a long-term personal visit with his mother and M.M. remained alone in the cell.

On 3 December 2006 in the early morning a fire broke out in cell no. 94. According to the applicant, the fire began at approximately 6 a.m. and despite other inmates ’ warnings prison guards did not immediately intervene to extinguish the fire. They opened the door of the cell only one hour after the beginning of the fire.

In accordance with the official version, the fire broke out at approximately 7 a.m. and the prison guards immediately intervened. When they opened the door of the cell, they discovered M.M. on the bed. He was gravely burnt. M.M. was provided with first aid and his situation was stable. He was able to speak to the prison guards and he wrote a statement that the fire had broken out owing to his own fault. However, later his situation got worse and it was decided to transfer him to a medical establishment of the Ministry of Justice. M.M. arrived at the medical establishment at 2.45 p.m. where he died of his burns at 3.30 p.m.

On 4 December 2006 a criminal enquiry was commenced by the Garadagh District Prosecutor ’ s Office on the fact of M.M. ’ s death.

On 6 December 2006 the applicant was informed of the death of his son.

On 7 December 2006, only three days after the beginning of the criminal enquiry, the investigator in charge of the case refused to institute criminal proceedings. The investigator noted that M.M. had suffered from epilepsy and that the fire had begun during his epilepsy crisis as his cigarette had fallen down on the bed. In this connection, the investigator relied on the statement written by M.M. after the incident according to which the fire had broken out because of his epilepsy crisis, as he was smoking when he had had his epilepsy crisis. The investigator found that the prison guards had immediately intervened to extinguish the fire. The investigator further relied on a statement by S.R. who submitted that he had seen M.M. after the incident at approximately 10 a.m. on 3 December 2006 and that M.M. had told him that he had had an epilepsy crisis and that he had not known how the incident happened. S.R. also submitted hat M.M. had not been ill-treated by prison guards.

The applicant was provided with the investigator ’ s decision only one month later. The applicant lodged a complaint against this decision with the superior prosecutor.

On 16 February 2007 the Baku City Prosecutor quashed the investigator ’ s decision and remitted the case for further examination to the Garadagh District Prosecutor ’ s Office. The prosecutor held that the investigator had not duly examined the scene of the incident. He also asked the investigator, inter alia , to order fire, chemistry and handwriting analyses, to verify whether M.M. ’ s cell was equipped with an adequate fire detection system, to question other inmates and prison guards, as well as the medical staff who had provided M.M. with the first aid and to establish why M.M. had not been immediately taken to the medical establishment after the incident.

On 26 April 2007 the investigator again refused to institute criminal proceedings concluding that there was no criminal element in M.M. ’ s death. He relied mainly on the statements submitted by the prison guards according to which the fire had broken out at approximately 7 a.m. because of M.M. ’ s epilepsy crisis and that they had immediately intervened after the incident. The investigator also noted that according to the handwriting analysis the statement written on 3 December 2006 was signed by M.M. However, he also noted in the decision that in accordance with the forensic expert opinion of 25 April 2007 M.M. was not be able to move, to speak or to write immediately after the incident as he had been in a state of shock as a result of his burns. The investigator also pointed out that it was not possible to carry out a fire analysis because the scene of the incident had not been preserved and repair work was carried out in the cell in question. As regards the submissions by other inmates that the fire had broken out at approximately 6 a.m. and that the prison guards had opened the door of the cell only one hour after the beginning of the fire and that M.M. died as a result of the prison guards ’ negligence, the investigator noted that the cells of the inmates in question were situated far from M.M. ’ s cell and therefore their statements could be considered as reliable. As to the delay in M.M. ’ s transfer to the medical establishment, the investigator noted that this delay had been due to the fact that the car transporting M.M. to the hospital had broken down on its way to the hospital. In this connection, he noted that a car was sent at 9.55 a.m. for M.M. ’ s transportation to the hospital, however M.M. arrived at the medical establishment at 2.45 p.m.

The applicant lodged a complaint against this decision with the first-instance court complaining that the investigator had failed to carry out an effective investigation.

On 4 July 2007 the Garadagh District Court dismissed the applicant ’ s complaint.

On an unspecified date the applicant lodged an appeal against this decision. He complained in particular about the inconsistency between the results of handwriting analysis and the fore nsic expert opinion of 25 April 2007. He also noted that the investigator and the first-instance court had failed to examine the photogra phs of M.M. taken on 3 December 2006 after the incident. In this connection, the applicant noted that it was clear from the photographs in question that there were signs of ill-treatment on M.M. ’ s body.

On 27 July 2007 the Baku Court of Appeal granted the appeal and remitted the case to the prosecution authorities. The court held that the investigator had failed to examine the photographs of M.M. and to establish why the scene of the crime had not been preserved.

On 15 October 2007 the prosecutor at the Garadagh District Prosecutor ’ s Office again refused to institute criminal proceedings noting that there was no criminal element in the death of M.M.

Following the applicant ’ s complaint agai nst this refusal, on 6 December 2007 the Garadagh District Court quashed the prosecutor ’ s decision and remitted the case to the prosecution authorities. The court pointed out in particular the inconsistency as to the time of the beginning of the fire and noted that the investigator had failed to clarify why M.M. had been taken to the medical establishment almost nine hours after the beginning of the fire. The court further held that the investigation had failed to examine whether M.M. ’ s conditions of detention had been appropriate for a person suffering from epilepsy.

On 7 January 2008 the investigator in charge of the case refused again to institute criminal proceedings. This decision was almost identical in wording to the investigator ’ s previous decision of 26 April 2007.

On 14 March 2008 the Garadagh District Court again quashed the investigator ’ s decision and remitted the case to the prosecution authorities. The judge held that the investigator had failed to examine the reason of the delay in M.M. ’ s transportation to the medical establishment. He also pointed out the inconsistency in the inmates ’ statements concerning the circumstances of the incident. The judge further noted that it was not established whether M.M. ’ s conditions of detention had been compatible with his disease.

On 7 May 2008 the prosecutor at the Garadagh District Prosecutor ’ s Office again refused to institute criminal proceedings. This decision was almost identical in wording to the investigator ’ s previous decisions of 26 April 2007 and 7 January 2008. The prosecutor concluded that the fire had broken out because of M.M. ’ s fault and that he had died as a result of his burns. He further held that the prison guards had immediately intervened and there was no negligence from their part. As to the question of the conditions of detention, the prosecutor noted that there was no special rule on detention in prison of prisoners suffering from epilepsy. He also confirmed in his decision that there was a delay in M.M. ’ s transportation to the medical establishment because the car transporting M.M. to the hospital had broken down. He further stated that it had not been possible to carry out a fire analysis as the scene of the incident had not been preserved.

The applicant was provided with this decision almost eight months after its delivery.

The applicant lodged a complaint against this decision noting that the investigator had not investigated the questions raised by the domestic courts when they quashed his previous decisions. In particular, there was no plausible explanation why M.M. had not been immediately transported to the medical establishment after the incident. He also disputed the official version according to which M.M. had been able to write a statement immediately after the incident and that the fire had broken out because of M.M. ’ s fault.

On 12 February 2009 the Garadagh District Court dismissed the applicant ’ s complaint. The judge held that all the facts of the case had been examined by the prosecution authorities and that M.M. had died as a result of an accidental fire.

The applicant appealed against this decision complaining that an effective investigation into the death of his son in prison had not been carried out. He submitted that the decision of 7 May 2008 was almost identical in its wording to the previous decisions of the investigator and this decision had not responded to any of the questions raised by the previous decisions of the domestic courts.

On 22 May 2009 the Baku Court of Appeal dismissed the applicant ’ s appeal noting that there was no reason to quash the first-instance court ’ s decision of 12 February 2009.

COMPLAINTS

The applicant complains under Articles 2 and 13 of the Convention that the State failed to protect the life of his son in prison and that there was no effective investigation into the death of his son.

Relying on Articles 3 and 13 of the Convention, the applicant complains that his son was tortured by the prison guards and that the domestic authorities failed to investigate the ill-treatment of his son.

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 particular, was the applicant ’ s son alone in his cell on 3 December 2006 and if so did it put his life at risk taking into consideration that he suffered from epilepsy? Was the cell in question equipped with a fire detection system and if so did this system function during the incident? What was the exact time of the beginning of the fire and how long time after its beginning did prison guards intervene? Was the applicant ’ s son immediately provided with the adequate medical care after the incident? In particular, why did he arrive at the medical establishment only at 2.45 p.m.? 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 , as alleged by the applicant, 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 his disposal effective domestic remedies in respect of his complaints under Articles 2 and 3, as required by Article 13 of the Convention?

4 . The Government are requested to submit copies of all documents (including expert opinions, photographs, the statement by the applicant ’ s son, testimony records) relating to the criminal proceedings concerning the death of the applicant ’ s son.