CASE OF ALIYEVA AND ALIYEV v. AZERBAIJAN
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicants were born in 1947 and 1942 respectively and live in Baku. 6. The applicants’ son, E.A., was born in 1971 and was an Azerbaijani national. He had his own business in Ukraine and lived in Kiev at the time of the events. 7. At around 4 a.m. on 1 June 2001 E.A. was stabbed with a knife outside a cafe in Kiev, Ukraine. He died as a result of the stabbing. 8. On the same day the Shevchenko District Police instituted criminal proceedings in connection with E.A.’s death. 9. On 9 June 2001 an investigator from the Shevchenko District Police decided to charge G.A., an Azerbaijani national working at the Azerbaijani embassy in Ukraine at the time of the events, on suspicion of E.A.’s murder. 10. It appears that on the same date G.A. was arrested by the Ukrainian law-enforcement authorities and on 12 June 2001 was remanded in custody. During the investigation, G.A. denied that he had murdered E.A., but refused to testify in connection with his stabbing. 11. On 11 July 2001 a forensic expert established that the stab wound to E.A.’s body had been caused by a knife with a blade 22 centimetres long and 2 centimetres wide. 12. On 17 July 2001 the Shevchenko District Court ordered G.A.’s release from custody on account of serious illness. On an unspecified date he left Ukraine for Azerbaijan. 13. It transpires that in the course of the investigation, the Ukrainian authorities also considered the possible involvement of another person in E.A.’s murder. In this connection, they requested the Azerbaijani authorities to question R.A., a major general of the Azerbaijani army who had been on an educational mission to Ukraine at the time of the events. 14. On 5 January 2002 the Azerbaijani prosecution authorities questioned R.A. as a witness in connection with E.A.’s stabbing. According to the record of questioning of the same date, R.A. denied any involvement. He stated that he knew G.A. who was an employee of the Azerbaijani embassy in Ukraine and that he had met E.A. there, but had not known him very well. As regards his whereabouts on 1 June 2001, R.A. stated that he did not remember exactly where he had been that day. He further stated that he had learned about E.A.’s death from employees at the Azerbaijani embassy. 15. On 30 January 2002 an investigator from the Shevchenko District Prosecutor’s Office decided to transfer the criminal case to the Prosecutor General’s Office of the Republic of Azerbaijan for further investigation, relying on the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993 (“the 1993 Minsk Convention”). The investigator substantiated the transfer by the fact that the two Azerbaijani nationals (G.A. and R.A.) who had been identified by witnesses as the people involved in E.A.’s murder on 1 June 2001, were on Azerbaijani soil. 16. The relevant part of that decision reads as follows: “M.S., who was questioned within the framework of the investigation, indicated that on 1 June 2001 he had been with E.A. at Cafe Sikora. When he had left the cafe, he had seen E.A. having an argument with two Azerbaijani nationals he did not know. One of the two men had then stabbed E.A. in the thorax. Subsequently, among the photographs submitted for identification, M.S. recognised R.A’s photograph and identified him as the person who had stabbed E.A. It was established that R.A., born on 4 June 1965, married, an Azerbaijani national, who had no criminal record, a degree holder, a major general, a head of the Army Corps, who resided in Baku ... was in Kiev between 28 March and 4 July 2001 on an educational mission at the National Academy of Defence of Ukraine. Among other photographs submitted for his identification, M.S. also identified G.A., indicating that he very much looked like the person who was with R.A. at the time of E.A.’s murder. Another eyewitness, S.N., who saw the events from a distance, clearly identified G.A ... during the identification procedure and indicated that [he] had been involved in the argument between the Azerbaijanis at Cafe Sikora and on the street outside the cafe at the time of E.A.’s murder...” 17. On 27 February 2002 the Deputy Prosecutor General of the Republic of Azerbaijan decided to return the criminal case to the Ukrainian authorities. He substantiated his decision by alleging failure on the part of the Ukrainian authorities to carry out the relevant investigative actions. In particular, he noted that the Ukrainian authorities had not identified and questioned all possible witnesses to the crime, such as customers and employees of the cafe on 1 June 2001, nor had they tried to establish the whereabouts of G.A. and R.A. on that day. He further noted that there were contradictions between the evidence given by eyewitnesses M.S. and S.N. in the investigation, and that the clothes G.A. and R.A. had been wearing on 1 June 2001 had not been examined by a forensic expert. 18. On 26 February 2003 the investigator from the Shevchenko District Prosecutor’s Office terminated criminal proceedings against G.A. and on the same day instituted criminal proceedings against R.A, relying in particular on the evidence given by M.S., who had insisted that R.A. was the person who had stabbed E.A. on 1 June 2001. 19. On 27 February 2003 the investigator from the Shevchenko District Prosecutor’s Office relying on Articles 72 and 73 of the 1993 Minsk Convention, decided to transfer the criminal case to the Prosecutor General’s Office of the Republic of Azerbaijan for further investigation in accordance with Azerbaijani law. He concluded that R.A. was the person who had stabbed E.A. on 1 June 2001. The relevant part of his decision reads as follows: “Among the photographs submitted for identification, M.S. clearly identified R.A. and indicated that [he] was the person who had stabbed E.A. Moreover, M.S. indicated ... that G.A. looked like the person who had been with R.A. at the time of the commission of the crime; however, he could not confirm for definite that [he] had been there. It was established that R.A., born on 4 June 1965, married, an Azerbaijani national, who had no criminal record, a degree holder, a major general, a head of the Army Corps, who resided in Baku ... was in Kiev between 28 March 2001 and 4 July 2001 on [an educational] mission at the National Academy of Defence of Ukraine. In the course of the investigation, therefore, it was established that the Azerbaijani national E.A. was not murdered by G.A., but by R.A., an Azerbaijani national.” 20. On 8 April 2003 the criminal case was assigned to the Military Prosecutor’s Office of the Republic of Azerbaijan and criminal proceedings were instituted in Azerbaijan. 21. Following the institution of the criminal proceedings in Azerbaijan on 8 April 2003, the applicants wrote on several occasions, in particular on 12 July 2003, on 29 July 2003, on 2 August 2003, on 28 August 2003 and on 10 September 2003, to the Prosecutor General’s Office asking for an effective investigation into their son’s death. In particular, they alleged that although R.A. had murdered their son, he had not faced prosecution and had enjoyed de facto protection. 22. On 18 September 2003 an investigator from the Military Prosecutor’s Office dismissed the criminal proceedings against R.A., finding that there was insufficient evidence to prove that he had been involved in E.A.’s murder. He also decided to continue the investigation in connection with the murder. The relevant part of his decision reads as follows: “Without clarifying the contradiction between the statements in the case file and carrying out the investigative steps necessary to establish which of them are true, and without identifying two people other than E.A. and M.S. who were at Cafe Sikoracategorically identifying who murdered E.A., and despite the fact that there was not any reliable evidence to prove that R.A. had murdered [him], the investigator instituted unjustified and unlawful criminal proceedings against R.A., concluding that [he had] murdered E.A. In the course of the criminal investigation of the case carried out in the Military Prosecutor’s Office, no reliable evidence was obtained to prove that R.A. had murdered E.A. For this reason, the criminal proceedings instituted under Article 115 § 1 of the Criminal Code of Ukraine against R.A. should be terminated, as [he] did not have anything to do with the commission of the crime, and the criminal investigation in connection with E.A.’s murder should be completely, in detail and objectively continued in accordance with Article 120 of the Criminal Code of the Republic of Azerbaijan and the perpetrator of the crime identified and prosecuted.” 23. The applicants were not informed of this decision. 24. As the applicants were not informed of the investigator’s decision of 18 September 2003, they continued to write to the Prosecutor General’s Office asking for an effective investigation into the death of their son. In reply to their letters, the applicants received the replies from the prosecution authorities which were all worded in a similar fashion. In particular, by letters dated 17 October 2003, 3 November 2003, 11 November 2003, 5 December 2013 and 7 January 2004, the prosecution authorities informed the applicants that the investigation would be carried out effectively and that they would be informed of its results. However, the prosecution authorities did not mention in their letters the existence of the investigator’s decision of 18 September 2003. 25. On 24 February 2004 the criminal case was assigned to the Serious Crimes Unit of the Prosecutor General’s Office. 26. On 28 June 2004 the investigator in charge of the case in Azerbaijan asked the Kiev City Prosecutor’s Office for legal assistance, with a view to questioning witnesses and obtaining other evidence. Following this request, an Azerbaijani investigator was sent on a mission to Ukraine from 2 September to 23 September 2004 and from 14 October to 21 October 2004. 27. By a letter of 19 May 2005 the Prosecutor General’s Office informed the applicants that in September and October 2004 an Azerbaijani investigator had been sent on a mission to Ukraine but it had not been possible to establish the whereabouts of the relevant witnesses or to question them. The relevant part of the letter reads as follows: “On 28 June 2004 the investigator [R.H.] sent a request to the Kiev City Prosecutor’s Office for legal assistance within the framework of the criminal case no. 803636/0363 in connection with the murder of E.A. and in September-October 2004 [R.H.] was on a mission in Kiev and participated in several investigative actions carried out by the Shevchenko District Prosecutor’s Office. However, as police officers of the Kiev City Shevchenko District Police Office failed to bring before the investigating authorities several witnesses whose statements were of particular importance to the investigation, it was not possible to question them and to carry out other investigative actions. An operational request was sent to the relevant Ukrainian authorities in order to take relevant steps for bringing the relevant witnesses before the investigating authorities by establishing their whereabouts. As the investigative actions were carried out on the territory of another State and some witnesses were not timely identified, it was not possible to complete the investigation and for this reason the period of investigation was extended in accordance with Article 218 of the Code of Criminal Procedure of the Republic of Azerbaijan...” 28. In reply to their further letters addressed to the prosecution authorities about the progress of the investigation, the applicants received two letters dated 7 September 2005 and 6 April 2006 from the Prosecutor General’s Office. The content of these letters were almost identical to the letter of 19 May 2005. 29. By letters dated 11 July 2005 and 21 November 2006 respectively, the Prosecutor General and Deputy Prosecutor General of the Republic of Azerbaijan asked their Ukrainian counterparts to establish the whereabouts of some witnesses and to question them in connection with E.A.’s stabbing. 30. On an unspecified date in 2006 the applicants asked the investigator to remove R.A. from office until the termination of the criminal proceedings. 31. On 11 September 2006 the investigator dismissed the applicants’ request, holding that such a preventive measure could be applied only in respect of a suspect or an accused person, of which R.A. was neither. The relevant part of the decision reads as follows: “In accordance with Articles 154 and 155 of the Code of Criminal Procedure of the Republic of Azerbaijan, the preventive measure of removal from office during the investigation may be applied only in respect of a suspect or an accused. However, it appears from the case file that R.A. was neither arrested as a suspect, nor adopted a decision recognising him as an accused. In these circumstances, there is no basis to apply the preventive measure of removal from office in respect of him...” 32. On 3 July 2007 the applicants wrote to the Prosecutor General again, complaining of the ineffectiveness of the investigation and the investigating authorities’ failure to secure evidence concerning the incident. In this connection, they submitted that G.A., who had been involved in the crime, had died in unclear circumstances. 33. By a letter of 6 July 2007 the Prosecutor General’s Office informed the applicants that the circumstances of G.A.’s death were not unclear, as he had died of heart disease. 34. On 28 December 2007 the applicants lodged an application with the Nasimi District Court, complaining of inactivity on the part of the investigating authorities and the ineffectiveness of the investigation. In particular, they alleged that the investigation of their son’s murder had been unlawfully extended for years, and that despite R.A. having been identified as the perpetrator of the crime, he had not faced prosecution. They also argued that they had not been informed of the progress of the investigation. 35. At a hearing before the Nasimi District Court, the applicants and their representative reiterated their complaints, stating that they had not been informed of the procedural decisions taken during the investigation, and that the investigation had been extended, despite the perpetrator of the crime having been identified. 36. On 1 February 2008 the court dismissed the application, considering that the investigating authorities had not acted unlawfully and that the relevant investigative steps had been taken by the prosecution authorities. The court held that prosecutors were entitled to extend investigations and that this kind of decision could not be challenged before the courts. The relevant part of the decision reads as follows: “Article 218.11 of the same Code [the Code of Criminal Procedure] provides that the time limit for conducting the investigation into an unsolved criminal case may be extended several times by the Prosecutor General of the Republic of Azerbaijan, until the case is solved in accordance with Articles 218.8 and 218.9 of the Code of Criminal Procedure... As it transpires from the legislation the extension of the time limit for conducting the preliminary investigation is the right of the prosecutor supervising the investigation... Moreover, Article 449 of the Code of Criminal Procedure of the Republic of Azerbaijan lays down the procedure by which actions or decisions of the prosecuting authorities could be challenged before a court. This Article clearly establishes the extent of actions and decisions which could be challenged. This Article does not provide the possibility to challenge under the procedure of judicial review the investigating authorities’ decision to extend the time limit for conducting the investigation ...” The court further held that at that moment there was insufficient evidence to charge anyone with E.A.’s murder. However, it also found that the applicants had not been duly informed by the prosecution authorities, who had failed to provide them with all the relevant decisions. The relevant part of the decision reads as follows: “It was established during the court investigation that several rights of the victim in this case were not fully secured by the investigating authority, that he was not informed in detail of the progress of the investigation, and that he was not provided with some of the decisions [on the criminal case] ... In accordance with Article 87.6.13 of the Code of Criminal Procedure of the Republic of Azerbaijan, the victim, in circumstances and pursuant to the rules provided for in the Code of Criminal Procedure, is entitled to be informed of the decisions taken by the investigating authorities which have affected his rights and lawful interests, and to obtain copies of these decisions at his request. The court takes into account the facts that the investigator R.M. admitted these violations during the court investigation, and that the victim was provided with copies of several important decisions on the criminal case during the examination of this complaint.” 37. On 23 February 2008 the applicants appealed against this decision, reiterating their previous complaints. 38. On 13 March 2008 the Baku Court of Appeal dismissed their appeal and upheld the Nasimi District Court’s decision. 39. On 3 June 2008 the Supreme Court refused to admit the applicants’ cassation appeal holding that the Baku Court of Appeal’s decision was final and not subject to appeal. 40. On 14 December 2010 an investigator from the Serious Crimes Unit of the Prosecutor General’s Office issued a decision suspending the criminal proceedings in connection with E.A.’s death. The investigator substantiated the decision by the fact that although all possible investigative steps had been taken, it had not been possible to determine who had killed E.A. The relevant part of the decision reads as follows: “As it was not possible to determine the person (persons) who committed the crime despite the fact that at the time being all possible operational investigative measures were taken, it is appropriate to suspend the criminal proceedings.” 41. On an unspecified date in 2013 the applicants lodged a complaint with the Nasimi District Court asking the court to quash the investigator’s decisions of 18 September 2003 and 14 December 2010. The applicants noted that they had not been informed of the investigator’s decision of 14 December 2010 suspending the criminal proceedings in connection with their son’s murder and they had learned about this decision only when the Government submitted to the Court a copy of the decision in question in their observations within the framework of the examination of their complaint by the Court. The applicants also submitted that they were never provided with a copy of the investigator’s decision of 18 September 2003. 42. On 31 May 2013 the Nasimi District Court granted partially the applicants’ claim and quashed the investigator’s decision of 14 December 2010 suspending the criminal proceedings in connection with the murder of the applicants’ son. In this connection, the court held that the prosecution authorities failed to prove that they had informed the applicants of the decision of 14 December 2010. The court further found that the prosecution authorities’ failure to inform the applicants of the decision of 14 December 2010 had been unlawful and had deprived the applicants of the exercise of their right to challenge the decision in question. Thus, it appears that the criminal proceedings are still pending, whereas the Court has not been informed of any further developments. 43. As to the part of the applicants’ claim concerning the investigator’s decision of 18 September 2003, the Nasimi District Court considered that this claim fell outside its jurisdiction and decided to transfer it for an examination to the Baku Military Court. The court held in this respect that the decision of 18 September 2003 was delivered by an investigator from the Military Prosecutor’s Office and therefore the decision in question could be challenged before a military court. 44. On 23 October 2013 the Baku Military Court dismissed the applicants’ claim considering it unjustified without further explanation. 45. On 5 November 2013 the Baku Court of Appeal upheld the Baku Military Court’s decision of 23 October 2013.