CASE OF HUSEYNOVA v. AZERBAIJAN
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
6. The applicant was born in 1978 and lives in Norway. 7. Mr Elmar Huseynov, the applicant’s husband, was a prominent independent journalist in Azerbaijan. At the time of the events he worked as the editor-in-chief of the weekly magazine Monitor, which was strongly critical of the Government as well as the opposition. He had also been the owner of the magazine since 1996 and wrote analytical and investigative articles for each edition under his own name. 8. Various civil and criminal proceedings had been brought against Mr Huseynov since the beginning of his journalistic activity for the publication of critical articles about the President of Azerbaijan and members of his family, and about members of the parliament, Government and other State officials. In total, thirty-four proceedings were instituted against him by various public officials. Moreover, copies of the magazine had been confiscated on several occasions and the domestic authorities sometimes prevented its publication. 9. According to the applicant, her husband regularly received threats because of his critical articles. In particular, in January 2004 a police officer had threatened him with death and told him to stop writing about the President and his family. 10. At around 9 p.m. on 2 March 2005, Mr Huseynov was shot dead on the third floor of his apartment building as he returned home from work. 11. Mr Huseynov’s murder received wide local and international media coverage and was unanimously condemned by various politicians, international organisations, and local and international NGOs. 12. On 2 March 2005 criminal proceedings were instituted under Articles 120.2.4 (murder) and 228.1 (illegal possession of weapons) of the Criminal Code by the Serious Crimes Department (“the SCD”) of the Prosecutor General’s Office. 13. On the same day a record relating to the inspection of the scene of the crime and the examination of the body (hadisə yerinə və meyitə baxış keçirilməsi haqqında protokol) was drawn up. It appears from the record that one bullet and seven cartridges were found at the crime scene and that two bullets were removed from the body. 14. On 3 March 2005 the investigator in charge of the case ordered a post-mortem examination of the body, which was carried out on the same day. Report no. 27 dated 10 March 2005 showed that death had resulted from bleeding caused by gunshot wounds. The expert also found that death was likely to have occurred a few minutes after the injuries had been sustained. 15. On 3 March 2005 a pistol with a silencer and a knitted hat were found near the crime scene. On the same day the investigator ordered forensic medical, ballistic and chemical trace examinations of the pistol and silencer, the bullets, the cartridges, the victim’s hair and nails, and the clothes that he had been wearing on 2 March 2005. Report no. 2074/2108/2109, dated 7 March 2005, concluded that the pistol in question was a Baikal pistol that had been produced in 2003 in Russia and that it had been used in the murder. 16. Still on 3 March 2005 the investigator asked a telecommunications company to provide details on any mobile telephones that had been used near the scene of the crime between 8.30 p.m. and 9 p.m. on 2 March 2005. 17. On 4 March 2003 the Prosecutor General’s Office, the Ministry of Internal Affairs (“the MIA”) and the Ministry of National Security (“the MNS”) issued a joint statement officially informing the public of the institution of criminal proceedings in connection with the murder of the applicant’s husband. 18. On 5 March 2005 the crime scene was again inspected by the investigator. 19. On the same day the investigator questioned the applicant as a witness in connection with her husband’s murder. She stated that she had not seen the killer, but that from February 2005 a person, who had introduced himself as Vusal, had come to their flat on several occasions and asked for a meeting with her husband. He had always arrived when her husband had been absent and had asked various questions about his whereabouts and working hours. The applicant further stated that she could not say who had murdered her husband, but she was sure that he had been murdered because of his journalistic activity. 20. On 7 March 2005 a photofit picture of the person who had introduced himself as Vusal was compiled on the basis of the applicant’s statements. 21. On 8 March 2005 the investigator arranged an identity parade in the presence of the applicant. However, she could not identify the man who had called himself Vusal among the people who took part in the identity parade. 22. On 19 March 2005 the applicant was granted victim status. 23. Further to various requests sent in March 2005 to the Russian authorities concerning the pistol found at the crime scene, the Russian authorities confirmed that the pistol in question had been produced in Russia as a gas pistol and had then been exported to Bulgaria on the basis of a contract with a Bulgarian company. It further appears from a letter, dated 23 March 2005 and signed by the Bulgarian Deputy Minister of Internal Affairs, that there was no record on the buyer of the pistol after its import to Bulgaria because Bulgarian legislation did not provide for such records for the buying and selling of gas pistols. 24. In the meantime, the prosecuting authorities identified two mobile telephone numbers which had allegedly been used by the perpetrators of the murder. On 26 March 2005 T.B., an Azerbaijani national, was charged under Article 320.1 of the Criminal Code (use of false documents) as he had purchased the mobile telephone numbers in a mobile telephone shop in Baku by giving false information about his identity. During questioning, T.B. stated that on 27 February 2005 he had bought the numbers at the request of T.X. and T.A., who had asked him to obtain a telephone number registered in someone else’s name. He further stated that he knew the men from Georgia where he was born and they had told him that they were in Baku on business. It appears from the documents in the case file that in July 2005 the Nizami District Court found T.B. guilty under Article 320.1 of the Criminal Code and sentenced him to two years’ imprisonment. 25. On 6 April 2005 the Prosecutor General reclassified the criminal case under Articles 277 (acts of terror) and 228.1 (illegal possession of weapons) of the Criminal Code and decided to hand the investigation over to the MNS. 26. On 3 May 2005 the investigator in the case showed the applicant four photographs in order to try to identify the person who had introduced himself as Vusal. The applicant identified the individual in photograph no. 2 as that person. 27. On the same day the investigator charged T.X., a Georgian national, under the aforementioned Articles 277 and 228.1 and issued a warrant for his arrest. It appears from the investigator’s decision that T.X. was suspected of being involved in the murder and had been identified as the person calling himself Vusal. 28. On 4 May 2005 the Prosecutor General’s Office, the MIA and the MNS issued a joint statement that T.X. had been identified as the person involved in the murder. The statement also noted that T.X. had left the country immediately after the murder and that an arrest warrant had been issued. It also indicated that T.X. had been identified by the applicant as the person who had introduced himself as Vusal before the murder. Lastly, the statement pointed out that the investigation was being carried out in collaboration with the Federal Bureau of Investigation of the United States of America (“the FBI”) and Turkey’s Central Security Department. 29. It appears from the case file that on 5 May 2005 the investigator questioned T.X.’s sister and son, who resided in Azerbaijan. 30. In the meantime, on 4 May 2005 the investigator ordered a new ballistic and chemical examination of the pistol and silencer found at the scene of the crime. The investigator noted that although the examination of 7 March 2005 had concluded that the pistol was a Baikal firearm produced in 2003 in Russia, the material collected during the investigation had revealed that the pistol had not been produced as a regular firearm but as a gas pistol that had subsequently been modified. On 27 May 2005 a panel composed of three experts issued report no. 4351/4352/4358 on the new ballistic and chemical examination of the pistol and the silencer. The experts reiterated the findings of the 7 March 2005 report (see paragraph 15 above), concluding that the pistol had been produced as a firearm and had not been modified. 31. On 11 May 2005 the investigator questioned the applicant about a suspicious person that she had seen in their building in February 2005. 32. On 20 May 2005 the Prosecutor General’s Office, the MIA and the MNS issued a new statement, informing the public that T.A., a Georgian national, had been identified as another suspect. The statement said that a warrant for his arrest had been issued. 33. It appears from a letter dated 27 May 2005, signed by the head of the Azerbaijani National Central Bureau of Interpol, that notices relating to T.X. and T.A. had gone out via Interpol. 34. The case file shows that in March and May 2005 the investigating authorities submitted hair samples to the FBI for a trace evidence examination. They were taken from the hat found near the scene of the crime and from pillowcases found in the flat that T.X. and T.A. had rented in Baku. The results of the examination revealed that some fibres found on the hat and pillowcases had the same microscopic characteristics and optical properties, consistent with them having come from the same source. 35. On 31 May 2005 the applicant wrote to the MNS asking for information concerning the progress of the investigation. In particular, she noted that although she had been recognised as a victim, the investigating authorities had failed to share any information on the investigation with her. 36. It can be seen in a document dated 8 June 2005, signed by the investigator, that he informed the applicant by telephone about the investigation. In particular, he informed her that various investigative actions had been conducted, that T.X. and T.A. had been identified as the perpetrators of the murder, that an international warrant for their arrest had been issued and that some forensic examinations had been carried out by the FBI. 37. On 2 June and 12 July 2005 the Prosecutor General’s Office and the MNS issued joint statements on the forensic examinations carried out in the United States of America. They stated that the results of the examinations had confirmed that T.X. and T.A. were directly involved in the murder. 38. In the meantime, on 16 and 30 May 2005 the Azerbaijani authorities asked the Georgian authorities to extradite T.X. and T.A. 39. By a letter of 1 July 2005, signed by the Deputy Prosecutor General of the Republic of Georgia, the Georgian authorities refused to extradite T.X. and T.A. on the grounds that as they were Georgian nationals they could not be extradited to a foreign country. However, relying on the CIS Convention on Legal Assistance and Legal relations in Civil, Family and Criminal Matters of 22 January 1993 and the Treaty between Azerbaijan and Georgia on Legal Assistance and Legal relations in Civil, Family and Criminal Matters of 8 March 1996 (see paragraphs 66-70 below), the Deputy Prosecutor General stated in the same letter that the Georgian authorities undertook to institute criminal proceedings against its two nationals at the request of the Azerbaijani authorities in case of the transfer of the criminal case to the Georgian authorities. 40. By two separate letters, dated 20 July 2005, the Prosecutor General of Azerbaijan again asked his Georgian counterpart for the arrest and extradition of T.X. and T.A. The Prosecutor General also asked the Georgian authorities to provide legal assistance to the Azerbaijani authorities by allowing two Azerbaijani investigators to conduct investigative actions on Georgian soil. 41. In July and August 2005 the Georgian authorities conducted various investigative actions at the request of their Azerbaijani counterparts. In particular, on 26 July 2005 two flats in Tbilisi were searched and various people were questioned in connection with the criminal proceedings instituted in Azerbaijan. 42. On 9 August 2005 the investigator showed various photographs to the applicant for identification. Although the applicant stated that she had seen two of the people on the photographs somewhere before, she could not remember more details about them. 43. On 15 August and 6 September 2005 the investigator questioned the applicant about her neighbours and the clothes worn by the man who called himself Vusal. 44. On 20 November 2005 the applicant again wrote to the MNS, asking for an effective investigation into the murder of her husband. She further asked the investigating authorities to provide her with information about the progress of the investigation. 45. On 30 November and 20 December 2005 the investigator ordered further ballistic and trace evidence examinations, in particular asking the experts to compare the pistol found at the scene of the crime with another pistol found in a different murder case. The experts’ reports, dated 15 December 2005 and 19 January 2006, concluded that the pistol found at the scene of the murder of the applicant’s husband had not been used in the commission of the other murder. 46. According to the applicant, she was threatened after her husband’s murder because she said that the domestic authorities had been involved. On an unspecified date in 2006 the applicant left Azerbaijan for Norway, where she was granted asylum. 47. On 4 May 2006 the investigator questioned a cousin of T.X. who resided in Azerbaijan. 48. On 14 November 2006 the investigator again questioned the sister of T.X. who resided in Azerbaijan. 49. On 30 November 2006 the investigator carried out a reconstruction of the murder. In particular, the investigator retraced the path the applicant’s husband had taken from his workplace to where he had been murdered. 50. In September and October 2005, in February, September and November 2006 and in July 2007 the Georgian authorities conducted various investigative actions at the request of their Azerbaijani counterparts. In particular, by a letter of 3 October 2006 the Office of the Prosecutor General of Georgia informed the Azerbaijani authorities that the Georgian prosecuting authorities had questioned T.A., who had used his right to remain silent. In that connection, it appears from the record of the questioning, which took place on 11 September 2006, that T.A. invoked his right to remain silent, stated that he did not consider himself guilty and that he had no confidence in the investigation conducted by the Azerbaijani authorities. The Georgian prosecuting authorities also informed their Azerbaijani counterparts by the same letter that they could not conduct any investigative actions in respect of T.X. as it had not been possible to establish his whereabouts. 51. By a letter of 11 February 2008 the applicant’s Azerbaijani lawyer asked the MNS to provide the applicant with information about the progress of the investigation. In particular, the lawyer pointed out that although three years had elapsed since the institution of criminal proceedings, the applicant had still not been informed about the progress of the investigation or the decisions that had been taken. He further asked the investigating authorities to allow the applicant to familiarise herself with the criminal case file and to provide her with copies of the relevant documents. 52. By a letter of 12 March 2008, signed by the head of the investigation department of the MNS, the MNS informed the lawyer that the applicant had been informed orally about the progress of the investigation. It was further stated that in accordance with Articles 87 and 102 of the Code of Criminal Procedure (see paragraph 61 below) the applicant had the right to familiarise herself with the case file and obtain copies of documents only when the preliminary investigation was over. The letter also said that the Azerbaijani authorities had asked the Georgian authorities to extradite the murderers and were continuing to take the necessary steps to achieve that goal. Lastly, it was noted that members of the investigative group had been sent to Georgia several times and that the investigation was ongoing. 53. On 13 May 2008 the investigator questioned T.B. (see paragraph 24 above) about the whereabouts of T.X. and T.A. It appears from the record of the questioning that T.B. stated that he had not seen them since his release from detention on 19 March 2007 and that he had no information about their whereabouts. 54. By a letter dated 14 June 2008 the National Central Bureau of Interpol informed the head of the investigation department of the MNS that T.X. and T.A. were not registered as being in Russia. 55. On 4 July 2008 the applicant’s Norwegian lawyer and the Norwegian Helsinki Committee wrote to the Prosecutor General’s Office and the MNS asking for the documents relating to the criminal investigation of the murder of the applicant’s husband. 56. By a letter of 18 July 2008 the MNS informed the applicant’s Norwegian lawyer that as he was not a member of the Azerbaijani Bar Association and had failed to submit a notarised power of attorney, he could not obtain copies of the documents. Relying on Articles 87 and 102 of the Code of Criminal Procedure, the letter also stated that a victim or his or her representative could only have access to a case file and the relevant documents following the termination of the preliminary investigation. The letter also informed the applicant’s lawyer that the criminal investigation was still ongoing. 57. On 30 January 2009 the applicant herself wrote to the MNS, reiterating her previous requests. In particular, she asked the investigating authorities to provide her with the documents relating to the investigation, to inform her of the progress of the investigation and of the date when the investigation would end. 58. By a letter dated 17 March 2009 the MNS informed the applicant that her request for access to the case file had been examined. However, in accordance with Articles 87 and 102 of the Code of Criminal Procedure a victim or her representative could only have access to the case file and the relevant documents after the termination of the preliminary investigation. The letter, which was twelve pages long, contained a detailed summary of the investigative steps conducted from the institution of criminal proceedings until March 2009. It stated that the investigation had identified T.X. and T.A. as the perpetrators of the murder and that any information received relating to the possible involvement of various people in the crime had been examined. In that connection, the letter referred to allegations submitted to the investigating authority in August 2006 and August 2007 by people arrested in connection with other criminal cases, as well as information revealed by various journalists and NGO activists in November 2006 and March 2009 about the identity of T.X. and T.A. However, the investigation had not substantiated any of those allegations. The letter also stated that the preliminary investigation was still ongoing and had been extended until 2 September 2009. 59. By a letter of 17 March 2009 the National Central Bureau of Interpol in Azerbaijan informed the head of the investigation department of the MNS that T.A. was living in Tbilisi in Georgia. However, his extradition had been refused by the Georgian authorities on the grounds that he was a Georgian national. The information was based on a letter dated 6 March 2009 from the Georgian National Central Bureau of Interpol to the Azerbaijani National Central Bureau of Interpol. 60. At the time of the most recent communication with the parties on 3 February 2016, when the last observations were filed by the Government, the criminal proceedings were still ongoing.