CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 septembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     Communicated on 18 September 2014   FIRST SECTION Application no. 8937/09 Eldar Kocheri Oglu GASIMOV against Azerbaijan lodged on 29 January 2009 STATEMENT OF FACTS The applicant, Mr Eldar Gasimov, is an Azerbaijani national, who was born in 1949 and lives in Baku. He is represented before the Court by Mr   J.   Suleymanov, a lawyer practising in Azerbaijan. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     Death of the applicant’s daughter The applicant’s daughter (S.J.) was born in 1979 and was married to an officer of the Ministry of National Security (“the MNS”). On an unspecified date in 2006 S.J. instituted proceedings for divorce against her husband. In November 2006 the divorce proceedings were pending before the Binagadi District Court. On 15 November 2006 S.J. fell down from the balcony of her flat which was situated on the seventh floor of a block of flats. At 1 p.m. on 15 November 2006 S.J. was admitted to the Clinical Medical Centre and was placed in the intensive care unit of the hospital. On arrival at the hospital, she was diagnosed with traumatic brain injury, blunt trauma of stomach, fractures of various bones and traumatic shock. On 20 November 2006 S.J. was transferred to the Oil Workers’ Hospital where she died on the same day. B.     Criminal investigation into the death of the applicant’s daughter On 16 November 2006 criminal proceedings were instituted under Article 125 (incitement to suicide) of the Criminal Code by the Binagadi District Prosecutor’s Office on the fact of S.J.’s death. It appears from the documents submitted to the Court that three forensic medical examinations were carried out in connection with S.J.’s death. The forensic reports did not exclude that some injuries on S.J.’s body had been sustained before her fall from the balcony. Moreover, a forensic report no. K8/12007 of 17 February 2007 and a further forensic report no. K69/2007 (undated) clearly established that S.J.’s death did not result from her fall, but from an unidentified poisoning. In the meantime, on 6 February 2007 the criminal case was assigned to the Baku City Prosecutor’s Office. On 30 March 2008 the criminal case was assigned to the Serious Crimes Unit of the Prosecutor General’s Office. On 28 July 2008 and on 16 October 2008 the applicant’s lawyer wrote to the Prosecutor General’s Office complaining of the ineffectiveness of the investigation. The lawyer noted that he had been threatened by telephone because an officer of the MNS, namely S.J.’s husband, was involved in the criminal case. He also asked the prosecuting authorities to identify the persons who had threatened him by telephone. On 24 September 2008 the applicant lodged a request with the investigator in charge of the case asking for re-qualification of the case under Article 120 (murder) of the Criminal Code. In particular, relying on the forensic expert reports’ conclusions that some injuries on S.J.’s body had been sustained before her fall from the balcony, the applicant claimed that S.J. had been beaten before her fall and had then been thrown from the balcony by force. He further pointed out that she had been poisoned in the hospital, as a result of which she died. On 6 October 2008 the applicant wrote again to the investigator reiterating his request of 24 September 2008. He further asked him to order the examination of blood sample taken from S.J. for determination of the origin of the poisoning. By a decision of 6 October 2008 the investigator refused to grant the applicant’s request finding that at this stage of the proceedings there was no evidence that S.J. had been murdered. On 27 October 2008 the applicant appealed against this decision to the Deputy Prosecutor General reiterating his previous complaints. By a letter of 10 November 2008 the Deputy Prosecutor General dismissed the request. By a letter of 22 November 2008 the Prosecutor General informed the applicant that numerous investigative actions had been taken and that the investigation was pending for determination of the origin and characteristics of the poisoning. On 12 December 2008 the applicant complained to the Deputy Prosecutor General noting that contrary to requirements of the criminal law he had not received any reasoned decision concerning his request of 27   October 2008, but had received only a letter dated 10 November 2008 by which he was informed that his request had been dismissed. On 30 December 2008 the applicant complained to the Prosecutor General. In particular, he complained that the investigation had not been effective, that the Deputy Prosecutor General’s decision not to re-qualify the criminal case under Article 120 of the Criminal Code had not been reasoned, and that the investigation had failed to examine the blood sample of S.J. On 27 October 2009 the applicant brought a civil action against the Prosecutor General’s Office asking the court to order the prosecuting authorities to investigate effectively the death of his daughter. On 29 October 2009 the Sabail District Court refused to admit the claim finding that the complaint about actions and omissions of the prosecuting authorities could not be examined in the civil proceedings. In reply to his further letters addressed to the prosecuting authorities about the progress of the investigation, the applicant received a letter dated 14 February 2011 from the Prosecutor General’s Office. The prosecuting authorities informed the applicant by this letter that the investigation would be carried out effectively and that he would be informed of its results. On 16 March 2011 the applicant lodged a criminal complaint to the supervision court about the ineffectiveness of the investigation. On 17 March 2011 the Sabail District Court refused to admit the claim finding that the applicant’s lawyer had failed to join his power of attorney to the application. On an unspecified date the applicant brought a civil action with Baku Administrative-Economic Court no. 1 reiterating his previous complaints. On 26 July 2011 the court refused to admit the claim finding that the claim could not be examined in the administrative proceedings, but transferred it to the Sabail District Court for examination. By a decision of 13 September 2011 the Sabail District Court decided to transfer the case to the appellate court for determination of court jurisdiction. On 12 October 2011 the Baku Court of Appeal held that the applicant’s claim could not be examined in the civil proceedings. On 30 December 2011 the Supreme Court upheld the Baku Court of Appeal’s decision of 12 October 2011. It appears from the case file that on an unspecified date the investigator decided to terminate the criminal proceedings. Following a complaint of the applicant against this decision, on 6 March 2012 the Nasimi District Court considered the investigator’s decision unlawful and quashed it. On 30 November 2012 the investigator again decided to terminate the criminal proceedings. On an unspecified date the applicant appealed against this decision. He complained, inter alia , that he had not been duly informed of the investigator’s decision to terminate the criminal proceedings, that the investigation which had lasted for more than six years had not been effective, that although S.J. had been beaten and had then been thrown from the balcony the criminal case was not qualified under Article 120 (murder) of the Criminal Code, and that the investigation had failed to establish the origin of the poisoning. In the course of the proceedings, the investigator noted that the decision to terminate the criminal proceedings was lawful, as although all the relevant investigative measures had been taken it was not possible to identify the person who had committed the crime. The investigator also stated that on 27   January 2009 a request for carrying out a forensic examination in connection with S.J.’s death had been sent to the United Kingdom, but no reply had been received in this respect. On 27 February 2013 the Nasimi District Court granted the applicant’s claim and quashed the investigator’s decision of 30 November 2012. In this connection, the court held that the investigation had not been in compliance with the requirements of Article 2 of the Convention and that the investigator had not taken relevant steps for identification of the perpetrator of the crime. Thus, it appears that the criminal proceedings are still pending, whereas the Court has not been informed of any further developments. COMPLAINTS Relying on Articles 2, 6, 13 and 14 of the Convention, the applicant complains that the domestic authorities failed to conduct an effective investigation into the death of his daughter.     QUESTIONS TO THE PARTIES 1.     Having regard to the procedural protection of the right to life (see, among other authorities, Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 298-306, ECHR 2011 (extracts), with further references; Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V; and Tanrıkulu v. Turkey [GC], no. 23763/94, § 103, ECHR 1999 ‑ IV), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?   2.     Did the applicant have at his disposal effective domestic remedies in respect of his complaints under Article 2, as required by Article 13 of the Convention?   3.     The Government are requested to provide detailed information concerning any investigative and other steps undertaken by the domestic authorities. They are in particular requested to submit copies of all documents, such as forensic reports, legal assistance requests, procedural decisions (including the investigator’s two decisions to terminate the criminal proceedings), testimony records, photographs, video recordings, copies of the applicant’s complaints to the domestic courts and the domestic courts’ decisions in this respect (including the applicant’s complaints against the investigator’s decisions to terminate the criminal proceedings and the Nasimi District Court’s decision of 6 March 2012), or any other document relating to the criminal proceedings concerning the death of the applicant’s daughter.