CASE OF MUSTAFAYEV v. AZERBAIJAN
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)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1937 and lives in Sumgayit. 6. The applicant’s son, Mahir Mustafayev (M.M.), was born in 1967 and at the time of the events was serving a life sentence in Gobustan Prison. 7. The applicant’s son, who suffered from epilepsy, was held with one other inmate (S.R.) in cell no. 94, designated for two inmates. 8. Since June 2006 M.M. had sent numerous complaints to various domestic authorities, including the Ministry of Justice, the Prosecutor General’s Office and the Ombudsman of the Republic of Azerbaijan. He complained, in particular, of his conditions of detention, of violations of inmates’ rights in Gobustan Prison and of ill-treatment by prison guards because of his complaints to various domestic authorities, alleging that his life was in danger. 9. On 2 December 2006 S.R. left cell no. 94 for a long-term visit to his mother and M.M. remained the sole occupant of the cell. 10. Early in the morning of 3 December 2006 a fire broke out in the cell. According to the applicant, the fire began at approximately 6 a.m. and prison guards did not immediately intervene to extinguish it despite warnings from other inmates. It took an hour for them to open the cell door after the outbreak of the fire. 11. According to the Government, the fire broke out at approximately 6.50 a.m. The prison guards took immediate action and opened the cell door at around 7 a.m. They took the applicant’s son out of the cell and gave him first aid. M.M. was sent to hospital by car at 11.45 a.m., arrived at 2.45 p.m. and died at 3.30 p.m. 12. The applicant was informed by telegram at 3.21 p.m. on 6 December 2006 of the death of his son. 13. It appears from M.M.’s death certificate, dated 13 March 2007, that the cause of death was first and second degree burns over the whole body and smoke inhalation (bütün bədənin texniki yanığı, I-II dərəcəli yanıq, intoksikasiya). 14. On 4 December 2006 the Garadagh District Prosecutor’s Office launched a criminal inquiry into M.M.’s death. 15. On 7 December 2006 the investigator in charge of the case refused to institute criminal proceedings. The investigator found that M.M. had suffered from epilepsy and that the fire had begun after his cigarette had fallen onto the bed during a seizure. The investigator relied on a statement written by M.M. after the incident, which stated that the fire had broken out because he had had an epileptic seizure while smoking. The investigator found that the prison guards had acted immediately in order to extinguish the fire. The investigator also referred to a statement from S.R. 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 a seizure and that he had not known how the incident had happened. The investigator’s decision also referred to post-mortem forensic report no. 147 dated 5 December 2006, which confirmed the existence of extensive burns on M.M.’s body. The forensic report also established that the time of the injuries corresponded to 3 December 2006 and that they were the kind of injuries which caused serious harm and could be life-threatening. 16. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of M.M. and S.R.’s written statements of 3 December 2006 and forensic report no. 147 of 5 December 2006, submitting that the case file had been destroyed. 17. The applicant was provided with a copy of the investigator’s decision of 7 December 2006 only one month later. He immediately lodged a complaint against that decision with a superior prosecutor. 18. On 16 February 2007 the Baku City Prosecutor overturned the investigator’s decision and remitted the case to the Garadagh District Prosecutor’s Office for a new examination. The prosecutor held that the investigator had not duly examined the scene of the incident. He also asked the investigator, inter alia, to order forensic fire, chemical and handwriting examinations, to check if M.M.’s cell had been equipped with an adequate fire detection system, to question other inmates, prison guards, and the medical staff who had given first aid to M.M. and to establish why M.M. had not been taken to hospital immediately after the incident. The prosecutor also asked the investigator to order a new forensic examination in order to establish, inter alia, whether M.M. had been able to speak and move freely immediately after the incident given the nature of his injuries. 19. On 26 April 2007 the investigator again refused to institute criminal proceedings, concluding that there had been no crime involved in M.M.’s death. He relied mainly on the statements submitted by the prison guards, who said the fire had broken out at approximately 7 a.m. because of M.M.’s epileptic seizure and that they had intervened immediately after the incident. The investigator also noted that handwriting report no. 2692 dated 6 April 2007 had indicated that the statement written on 3 December 2006 had been signed by M.M. However, he also noted in the decision that forensic expert report no. 32 dated 25 April 2007 had stated that M.M. had not been able to move, speak or write immediately after the incident as he had been in a state of shock as a result of his burns. The decision also recorded that chemical analysis report no. 2375 of 19 March 2007 had concluded that there had been no trace of oil products in samples taken from the cell walls or of carbonised particles. The investigator also pointed out that it was not possible to carry out a forensic fire examination because the scene of the incident had not been preserved and repairs had been carried out in the cell in question. As regards the statements by some inmates that the fire had broken out at approximately 6 a.m., that it had taken an hour for the prison guards to open the door of the cell and that M.M. had died as a result of their negligence, the investigator noted that the cells of the inmates in question were situated far from M.M.’s cell and that therefore their statements could not be considered as reliable. The investigator also questioned Gobustan Prison’s paramedic (feldşer) (N.B.) who had given first aid to M.M. after the fire. N.B. stated that he had been informed by telephone at home about the incident at around 7 a.m. on 3 December 2006. He had taken a taxi to the prison and had arrived fifteen minutes later. He had given first aid to M.M. but his condition had worsened at around 8 a.m. and he had requested his transfer to a hospital. N.B. stated that he had accompanied M.M. in the car that had transported him to the hospital but they had not arrived until 2.45 p.m. because they had waited for an hour and fifteen minutes for the car to be repaired after it had broken down. In that connection, the investigator referred to letter no. 17/1/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice, confirming that the car transporting M.M. to the hospital had arrived at 2.45 p.m. and that the delay in his transfer had been due to the fact that the car had broken down on its way to the hospital. The letter also contained information about M.M.’s medical history, pointing out that he had previously been admitted five times to that medical establishment, had been diagnosed four times with epilepsy and had received the appropriate treatment. 20. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of chemical analysis report no. 2375 dated 19 March 2007, handwriting report no. 2692 dated 6 April 2007, forensic expert report no. 32 dated 25 April 2007, letter no. 17/1/15-954 of 27 February 2007 from the Prisons Service of the Ministry of Justice and the statements made by the prison guards, medical staff and inmates detained in Gobustan Prison, submitting that the case file had been destroyed. 21. The applicant lodged a complaint against the investigator’s decision with the Garadagh District Court, complaining that he had failed to carry out an effective investigation. 22. On 4 July 2007 the Garadagh District Court dismissed the applicant’s complaint. 23. On an unspecified date the applicant lodged an appeal against that decision. He complained, in particular, of the inconsistency between the conclusions of the handwriting report dated 6 April 2007 and the forensic expert opinion dated 25 April 2007. He also argued that the investigator and the first-instance court had failed to examine photographs of M.M. taken immediately after the incident on 3 December 2006. He submitted that the photographs showed that M.M.’s body had signs of ill-treatment. 24. On 27 July 2007 the Baku Court of Appeal granted the appeal and remitted the case to the prosecuting authorities for fresh examination. The appellate court held that the prosecuting authorities had failed to examine the photographs of M.M. for signs of ill-treatment on his body or to establish why the scene of the incident had not been preserved. 25. On 15 October 2007 a prosecutor at the Garadagh District Prosecutor’s Office again refused to institute criminal proceedings on the grounds of a lack of a criminal element in the death. In particular, the prosecutor held that there was no evidence that M.M. had been ill-treated, as alleged by the applicant. He relied in that connection on the conclusions of forensic report no. 147, which had only confirmed the existence of numerous burns on M.M.’s body. 26. On an unspecified date the applicant appealed against that decision. 27. On 6 December 2007 the Garadagh District Court overruled the prosecutor’s decision and remitted the case to the prosecuting authorities for a new examination. The court pointed out the inconsistencies as to when the fire had begun. It further held that the investigation had failed to clarify why M.M. had been taken to hospital almost eight hours after the fire had broken out. The court held that the fact that the car transporting M.M. had broken down could not explain such a long delay. The court also found that the investigation had failed to examine whether M.M.’s conditions of detention had been appropriate for a person suffering from epilepsy. 28. On 7 January 2008 the investigator in charge of the case again refused to institute criminal proceedings. The wording of the decision was identical to that of 26 April 2007, except the last few paragraphs, which concerned the conditions of detention of inmates suffering from epilepsy. In that connection, relying on statements made by the head of the prison regime department of Gobustan Prison and N.B., the investigator found that domestic law did not provide for any special conditions of detention for inmates suffering from epilepsy or any restriction on the authorised items they could possess in prison. 29. On 14 March 2008 the Garadagh District Court overruled the investigator’s decision of 7 January 2008 and remitted the case to the prosecuting authorities. The court held that the investigator had failed to examine the reason for the delay in M.M.’s transfer to hospital. It also pointed out the inconsistencies in the inmates’ statements concerning the circumstances of the incident. The court further found that it had not been established whether M.M.’s conditions of detention had been compatible with his illness and that an inquiry should have been carried out as regards the necessary security and medical measures for a person like M.M., whose condition was likely to give rise to sudden seizures. 30. On 7 May 2008 a prosecutor at the Garadagh District Prosecutor’s Office again refused to institute criminal proceedings, using wording that was almost identical to the decisions of 26 April 2007 and 7 January 2008. The prosecutor found that it had been M.M.’s fault that the fire had broken out and that he had died as a result of his burns. He further held that the prison guards had taken immediate action and there had been no negligence on their part. The prosecutor noted that there was no special rule for the detention of inmates suffering from epilepsy. He also confirmed that there had been a delay in taking M.M. to hospital because the car had broken down. He further found that it had not been possible to carry out a forensic fire examination as the scene of the incident had not been preserved. Lastly, the prosecutor referred to a statement made by a forensic expert, A.M., that there had been no causal link between M.M.’s death and his delayed transfer to hospital. 31. Despite the Court’s explicit request to the Government to submit copies of all the documents relating to the criminal investigation concerning M.M.’s death, the Government failed to provide the Court with a copy of A.M.’s statement, submitting that the case file had been destroyed. 32. The applicant was provided with a copy of that decision only on 26 December 2008, following intervention by the Ombudsman. 33. On an unspecified date the applicant lodged a complaint against the prosecutor’s decision of 7 May 2008, arguing that the prosecuting authorities had failed to investigate the questions raised by the previous court decisions. In particular, there had been no plausible explanation for M.M. not being taken immediately to hospital 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 he had caused the fire himself. 34. 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 prosecuting authorities and that M.M. had died as a result of an accidental fire. 35. On 6 March 2009 the applicant appealed against that decision, arguing that there had not been an effective investigation into his son’s death in prison. He argued that the wording of the prosecutor’s decision of 7 May 2008 had been almost identical to the prosecuting authorities’ previous decisions and that it had not dealt with any of the questions raised by the previous court decisions. 36. On 22 May 2009 the Baku Court of Appeal dismissed the applicant’s appeal, finding that there was no reason to overrule the first-instance court’s decision of 12 February 2009.