CASE OF MALIK BABAYEV v. AZERBAIJAN
No violation of Article 2 - Right to life (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;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1966 and lives in Khachmaz. 6. The applicant’s son, Zakir Babayev (Z.B.), was born in 1991; on 3 July 2009 he was drafted into the army to perform his compulsory military service. From October 2009 he served as a sniper in Gadabay region in military unit no. 171. 7. On the morning of 14 November 2009 Z.B. was on guard duty with one other soldier (Q.S.) at a military post called “A” in Gadabay region. At around 11 a.m. he left his post and went into the nearby forest, where two peasants were cutting wood. Z.B. called the applicant using the telephone of one of the peasants and asked his father to provide him with some belongings. He also asked the applicant to send him a mobile telephone topup card worth ten Azerbaijani manats (AZN). During the telephone conversation he was in a good mood and did not complain about any problems. Z.B. also asked the applicant to tell his mother to leave her mobile telephone turned on as he would call her later. Following that conversation, the applicant bought mobile telephone top-up cards and sent their passwords to his son by a telephone message. 8. According to the material in the case file, following the telephone conversation with the applicant, Z.B. returned to his guard duty post. At around noon Q.S. left the post in order to change the guard and Z.B. remained alone. A few minutes later the soldiers heard a gunshot and went to the post, where they discovered Z.B.’s body. 9. On 14 November 2009 criminal proceedings were instituted under Article 125 (incitement to suicide) of the Criminal Code by the Gazakh Military Prosecutor. 10. On the same day a record of an inspection of the scene of the crime was drawn up and signed by the commander of military unit no. 171, Major A.F. It was also signed by two attesting witnesses, E.Q. and N.D., who were soldiers in the same military unit. The record states that the inspection began at 4.30 p.m. and ended at 6 p.m. According to the record, Z.B. had been wearing a shoe and four socks on his left foot; however, the shoe and the sock of his right foot had been taken off. His right shoe had been found next to his body. According to the record, one cartridge, a pen and a note written on a cigarette pack were found at the crime scene. Various photographs of Z.B.’s body, the cartridge, the pen and the note were taken. The note read as follows: “I, Z.B., commit suicide and nobody is responsible for that. I commit suicide because I don’t want to be a burden to anyone. Mum and Dad, forgive me. Goodbye to everyone; goodbye to life. Signature. Z.B.” 11. On the same day a record of the examination was drawn up by the investigator in charge of the case, who examined Z.B.’s body at the headquarters of military unit no. 171 in Gadabay region. According to the record, the examination began at 9 p.m. and ended at 10 p.m. Various photographs of Z.B.’s body were taken. 12. On 15 November 2009 a record of the examination of the body was drawn up in the presence of a forensic expert in the city of Ganja. 13. On the same date a post-mortem examination of Z.B.’s body was carried out. Report no. 02 dated 15 November 2009 showed that death had resulted from one gunshot wound to the left part of the rib cage. The expert found that the seam of the left pocket of Z.B.’s uniform had become unstitched. The expert did not find any other injury on Z.B.’s body or uniform. 14. On 17 November 2009 the investigator questioned nine soldiers of the military unit in which Z.B. had served. The soldiers stated that Z.B. had never been ill-treated during his military service. One of the soldiers, Q.S., further stated that when they had been on guard duty on 14 November 2009, Z.B. had been in a bad mood and had told him about his family problems. In particular, according to Q.S., the applicant’s son told him that he had talked to his mother-in-law, who had said that his parents had gone to Russia and would not be visiting him. However, another soldier (N.D.) stated that on 14 November 2009 Z.B. had been in a good mood and had told him that he had talked to his mother-in-law by telephone. 15. On 17 November 2009 the investigator also took signature and writing samples from the soldiers of the military unit in order to identify the author of the written note found at the crime scene. 16. On 19 November 2009 the investigator requested the Khachmaz District Department of Education to provide the investigation with the signature and samples of the applicant’s son’s writing. 17. On 24 November 2009 the investigator also sent an operational request (əməliyyat tapşırığı) to the head of the military counterintelligence department of military unit no. 171, asking him to investigate whether Z.B. had been subjected to unlawful actions during his military service. In a letter dated 30 November 2009 and marked “secret”, the head of the military counterintelligence department of military unit no. 171, a lieutenant-colonel (Y.S.), replied to the investigator’s request of 24 November 2009. He noted that according to the information obtained after having taken operational measures (əməliyyat tədbirləri), on 14 November 2009, before going to the guard post, Z.B. had had a dispute with a sergeant (S.H.) and a soldier (Q.S.), who had beaten him. Around five minutes after this incident, a gunshot had been heard and Q.S., S.H. and another soldier (K.M.) had gone to the post, where they had discovered Z.B.’s body. It was also indicated in the letter that the soldiers had removed Z.B.’s body after the incident in order to help him, but upon realising that he was dead they had laid the body back in its original place. 18. On 24 November 2009 the investigator sent another operational request to the head of the Khachmaz District Police Office, asking him to investigate whether Z.B. had had any family problems, whether Z.B. had been engaged to anyone, or whether any of his close relatives had been suffering from any psychological illnesses. By a letter of 7 December 2009, the head of the Khachmaz District Police Office informed the investigator that Z.B. had had no family problems, that he had not been engaged to anyone and that his relatives had not been suffering from any psychological illnesses. 19. By a decision of 25 November 2009, the investigator recognised the applicant as a legal heir of the victim (zərərçəkmiş şəxsin hüquqi varisi). On the same day the applicant was questioned by the investigator. He stated that at around 11 a.m. on 14 November 2009 he had talked to his son by telephone. Z.B. had been in a good mood and had not complained about anything. Z.B. had asked the applicant to tell his mother to leave her mobile telephone turned on as he would call her later. The applicant further stated that at the request of his son he had bought mobile top-up cards and sent their passwords to him by a telephone message. The applicant also stated that his son had not had a fiancée or a mother-in-law and that he had not had any family problems. 20. On 4 December 2009 the investigator ordered forensic medical, ballistic, chemical and trace examinations. Report no. 16771/72/73 dated 29 December 2009 showed that Z.B. had used his service weapon – an SVD-type D6197 sniper rifle – to commit suicide. The report further found that the seam of the left pocket of Z.B.’s uniform had become unstitched and that this could have resulted either from contact with a blunt object or the use of physical force. 21. On 7 December 2009 the investigator ordered a handwriting examination of the written note found at the crime scene. Report no. 16713 dated 28 December 2009 concluded that a comparison of the samples submitted to the examination showed that the note had similarities with Z.B.’s writing and signature. Report no. 709 dated 27 January 2010 concluded that the coloured elements used in the writing of the note in question and of the pen found at the scene of the crime had the same chemical characteristics. 22. According to a document entitled “Instruction” (Göstəriş) dated 14 December 2009 the Deputy Military Prosecutor of the Republic of Azerbaijan gave various instructions to the prosecuting authorities in connection with the criminal proceedings relating to Z.B.’s death. In particular, he asked the prosecuting authorities to inspect the scene of the crime. The relevant part of the document reads as follows: “It appears from the case material that the Gazakh Military Prosecutor’s Office received the information that Z.B. died ... and the agents of the prosecuting authorities went to the scene of the crime, but it was not possible for them to inspect the scene of the crime, given the foggy weather conditions in the mountainous area. The military commander who carried out the preliminary inspection of the scene of the crime presented the collected material evidence to the Gazakh Military Prosecutor’s Office. In order to reconstruct the conditions in which the incident took place, the scene of the crime should again be inspected ...” 23. On 11 January 2010 the investigator visited the “A” military post and inspected the scene of the crime. According to the record of the inspection (dated 11 January 2010), it began at 2.30 p.m. and ended at 3.40 p.m. The investigator took various photographs of the area where the military post was situated. 24. On the same day the investigator questioned four soldiers, including S.H. and Q.S. They denied having beaten Z.B. on 14 November 2009 and submitted that Z.B. had never been subjected to ill-treatment. As regards the investigator’s question regarding the fact that the seam of the left pocket of Z.B.’s uniform had been unstitched, they stated that they had not noticed it. 25. On 12 January 2010 the investigator questioned the two peasants who had seen Z.B. on 14 November 2009. They stated that on 14 November 2009, as they had been cutting wood in the forest, Z.B. and Q.S. had approached them. Z.B. had used their mobile telephone to call his father; Z.B. and Q.S. had then left the area. They also stated that Z.B. had been in a good mood before and after the telephone conversation. 26. On 18 January 2010 the investigator carried out a reconstruction of the events in order to establish whether Z.B. had been technically able to commit suicide with his service weapon. The investigator concluded that it would have been possible if he had pressed the trigger of the weapon with the toe of his right foot when standing up or lying down. 27. On 21 January 2010 the applicant was again questioned by the investigator. 28. On the same day the investigator ordered a post-mortem psychiatric and psychological examination (məhkəmə-psixiatrik və psixoloji ekspertizası) of Z.B. Report no. 19 of that examination, dated 1 February 2010, concluded on the basis of the statements available in the case file that Z.B. had not been suffering from any mental disorder, but that he had probably been in a state of depression before his death. However, it was not possible to determine the reason for that depression. 29. On 3 February 2010 the investigator questioned five soldiers of the military unit in which Z.B. had served. 30. On 9 February 2010 the investigator decided to terminate the criminal proceedings, finding that there had been no criminal element in Z.B.’s death. The investigator concluded that Z.B. had committed suicide because he had probably been in a state of depression. The investigator further held that it had not been established that Z.B. had been ill-treated by other soldiers. The investigator also decided to destroy the material evidence found at the crime scene, including the written note found next to Z.B.’s body. 31. On 27 February 2010 the applicant lodged a complaint with the Gazakh Military Court against the investigator’s decision of 9 February 2010, complaining of the ineffectiveness of the criminal investigation. He disputed the investigator’s conclusions relating to the suicide of his son, pointing out that Z.B. had not suffered from any mental disorder. He submitted in that connection that the statements of the soldiers had been contradictory and had been fabricated, as his son had never had a fiancée or a mother-in-law. The applicant alleged that his son had been either killed or had been driven to suicide by S.H. and Q.S. In that connection, he relied on the content of the letter of 30 November 2009 from the military counterintelligence department of the military unit. He also submitted that the fact that the seam of the left pocket of Z.B.’s uniform had become unstitched proved that his son had been beaten before his death. The applicant further pointed out that the note found at the crime scene had been written using certain words that his son had never used. In particular, he noted that even though Z.B. had never called his parents “ana” (mum) and “ata” (dad), but rather “mama” and “papa”, he had addressed them as “ana” and “ata” in that note. The applicant also complained that his son had been harassed by S.H., who had regularly forced Z.B. to ask the applicant to send mobile telephone top-up cards for S.H. In that connection, he asked for an examination of the list of calls made to and from his mobile telephone during the entire period during which his son had been undertaking military service. 32. On 18 March 2010 the Gazakh Military Court overruled the investigator’s decision and remitted the case to the prosecuting authorities for fresh examination. The court ordered the investigating authority to examine the applicant’s particular complaints. It further found that the investigator had not had the right to decide to destroy the material evidence found at the scene of the crime. 33. As can be seen from the documents submitted by the Government, following the Gazakh Military Court’s decision of 18 March 2010, on 19 March 2010 the investigator decided to continue the investigation. 34. On 23 March 2010 the investigator questioned the expert who had conducted forensic medical, ballistic, chemical and trace examinations (see paragraph 20 above). The expert stated that the seam of the left pocket of Z.B.’s uniform could have come unstitched because it had come into contact with his service weapon after his suicide. 35. On 25 March 2010 the investigator also questioned two soldiers, who stated that they did not remember whether Z.B. had called his parents “ana” (mum) and “ata” (dad) or “mama” and “papa”. 36. On 29 March 2010 the same investigator again decided to terminate the criminal proceedings. That decision was identical in its wording to the investigator’s previous decision of 9 February 2010, except for the part concerning the preservation of the written note found at the scene of the crime and two newly added paragraphs. In those paragraphs, the investigator noted that the two soldiers questioned during the investigation had not remembered whether Z.B. had called his parents “ana” (mum) and “ata” (dad) or “mama” and “papa”. Moreover, relying on the questioning of the expert on 23 March 2010, the investigator concluded that the seam of the left pocket of Z.B.’s uniform had been unstitched because it had come into contact with his service weapon after his suicide and not as a result of any ill-treatment. 37. On 10 April 2010 the applicant lodged a complaint with the Military Prosecutor of the Republic of Azerbaijan against that decision. He complained of the ineffectiveness of the criminal investigation, pointing out that, taking into consideration that there had been a national holiday in the country from 20 to 28 March 2010, it had been impossible to carry out a new investigation between 19 and 29 March 2010. The applicant also argued that the investigator should have questioned Z.B.’s parents and relatives – not the two soldiers in question – in order to establish whether Z.B. had called his parents “ana” (mum) and “ata” (dad) or “mama” and “papa”. He further disputed the investigator’s interpretation of the expert’s conclusion (see paragraphs 20 and 34 above), alleging that the investigator had substituted his own opinion for the expert’s conclusion. Lastly, he complained that his lawyer had not had access to the case file. 38. As can be seen from the documents in the case file, on 21 April 2010 the Military Prosecutor of the Republic of Azerbaijan overruled the investigator’s decision of 29 March 2010 and remitted the case for fresh examination. Despite the Court’s explicit request to the Government that they submit copies of all the documents relating to the criminal proceedings concerning Z.B.’s death, the Government failed to provide the Court with a copy of the decision of 21 April 2010 of the Military Prosecutor of the Republic of Azerbaijan. 39. The criminal case was allocated to another investigator at the Gazakh Military Prosecutor’s Office. 40. In May and June 2010 the new investigator questioned Z.B.’s parents, two schoolmates, and five soldiers (including Q.S.) who had served in the same military unit. During the questioning, despite stating that Z.B. had never complained before his death about being ill-treated, the applicant reiterated his previous complaints. It further appears that, even though on 5 June 2010 the investigator questioned the five soldiers separately, the wording of their statements was identical. They each stated that Z.B. had never been ill-treated during his military service. 41. On 18 June 2010 the investigator in charge of the case decided to terminate the criminal proceedings. The investigator found that the allegation of Z.B.’s ill-treatment by Q.S. and S.H. had not been proved during the investigation and that Z.B. had committed suicide because he had probably been in a state of depression. 42. On 13 July 2010 the applicant lodged a complaint against that decision, reiterating his previous arguments. He also noted that the investigator’s decision of 18 June 2010 was almost identical in its wording to the previous decisions of the prosecuting authorities. He further complained that the new investigator had failed to question S.H. again or to address the contradictions in the statements of the soldiers. In that connection, he pointed out that, although Z.B. had had no fiancée or mother-in-law – which had been confirmed in a letter dated 7 December 2009 from the Khachmaz District Police Office – the soldiers had referred in their statements to an alleged telephone conversation with a mother-in-law. The applicant lastly complained about the investigator’s failure to attach any importance to the letter dated 30 November 2009 from the head of the military counterintelligence department of military unit no. 171. 43. On 23 July 2010 the Military Prosecutor of the Republic of Azerbaijan again quashed the investigator’s decision and remitted the case to the prosecuting authorities for fresh examination. The Government failed to provide the Court with a copy of the decision of 23 July 2010 of the Military Prosecutor of the Republic of Azerbaijan. 44. On 27 July 2010 the investigator again questioned Z.B.’s parents, who reiterated their previous complaints. They also stated that Q.S. and S.H. had regularly harassed their son into obtaining mobile telephone top-up cards. 45. In August 2010 the investigator also questioned various soldiers, who denied any ill-treatment or harassment of Z.B. during his military service. 46. According to the documents submitted by the Government, on 27 August 2010 the investigator again sent an operational request to the head of the military counterintelligence department of military unit no. 171. The investigator noted that, although in the letter dated 30 November 2009 it was stated that Z.B. had been beaten by S.H. and Q.S. on the day of the incident, that allegation had not been proved during the investigation. The investigator further asked the head of the military counterintelligence department to investigate whether S.H. and Q.S. had tried to extort money from Z.B. during his military service. 47. By a letter dated 10 September 2010, the head of the military counterintelligence department of military unit no. 171, Y.S., replied to the investigator’s request of 27 August 2010. Y.S. noted that, although he had previously indicated in his letter of 30 November 2009 that Z.B. had been beaten by S.H. and Q.S., that information had not been subsequently confirmed. He further informed the investigator that the military counterintelligence department had not received any information relating to the extortion of money. 48. On 20 September 2010 the investigator at the Gazakh Military Prosecutor’s Office again decided to terminate the criminal proceedings, finding that there had been no criminal element in Z.B.’s death. In that connection, the investigator found that Z.B. had committed suicide because he had probably been in a state of depression. Relying on the letter dated 10 September 2010 from the intelligence department of military unit no. 171, he also concluded that the allegation that Z.B. had been ill-treated by S.H. and Q.S. had not been confirmed during the investigation. 49. On 9 October 2010 the applicant lodged a complaint against that decision with the Military Prosecutor of the Republic of Azerbaijan. He reiterated his previous complaints, pointing out that the investigator had tried to cover those who had ill-treated his son and driven him to suicide. 50. On 15 October 2010 the Deputy Military Prosecutor of the Republic of Azerbaijan dismissed the applicant’s complaint, finding that the criminal investigation had been effective. 51. On 1 November 2010 the applicant lodged a complaint against that decision with the Baku Military Court, arguing that the investigator had failed to carry out an effective investigation. In particular, he alleged that the appearance of a new letter from the military counterintelligence department of military unit no. 171 (see paragraph 47 above), which clearly contradicted the previous letter from the same organ, had shown that the domestic authorities had tried to cover S.H. and Q.S., who had beaten his son. He also complained of the investigator’s failure to address the contradictions in the statements of the soldiers relating to the alleged existence of a fiancée and a mother-in-law and the alleged family problems of Z.B. 52. On 13 November 2010 the Baku Military Court dismissed the applicant’s complaint. The court found, without providing any explanation, that the applicant’s complaints were groundless. 53. On 1 December 2010 the applicant appealed against that decision, reiterating his previous complaints. 54. On 29 December 2010 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the Baku Military Court’s decision of 13 November 2010.