ITEMID: 001-110814
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PUTINTSEVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1964 and lives in the town of Beloyarskiy in the Tyumen Region.
6. On 8 June 2001 the applicant’s son, Mr Valeriy Putintsev, was called up for two years of mandatory military service. He was assigned to serve in military unit no. 39982 in the town of Uzhur.
7. On the evening of 9 February 2002 Mr Putintsev left the military unit without permission. Three days later he was arrested in a local village and his detention for ten days on a charge of absence without leave was authorised. He was placed in a disciplinary cell at the Uzhur Town Garrison.
8. On 14 February 2002 junior sergeant L. took up convoy duty in the detention unit of the Uzhur Town Garrison. On the following day, on an order from the commandant of the garrison, junior sergeant L. attempted to search the applicant’s son. Mr Putintsev headbutted the junior sergeant, hurting Mr L.’s lip. Mr L. did not fight back. In view of the incident, the commandant ordered a medical examination of the applicant’s son and junior sergeant L. While escorting the applicant’s son from a military hospital back to the garrison’s detention unit, Mr L., in an attempt to prevent the applicant’s son from escaping, fired at him and wounded him in the right buttock. On the morning of 27 February 2002 the applicant’s son died from the gunshot wound, which had caused injuries to internal organs and extensive bleeding.
9. The commandant of the Uzhur Town Garrison immediately reported the shooting to the military prosecutor’s office of military unit no. 56681. A criminal investigation was opened into the reported incident. On 15 February 2002, at 3.10 p.m., an acting assistant to the military prosecutor examined the scene of the incident. Junior sergeant L. participated as a witness. The record showed that the grounds adjacent to the military hospital were surrounded by a concrete fence. A road between the hospital building and the fence led to metal gates guarding the entrance to the hospital grounds. A used cartridge from an automatic gun was found on the road approximately twenty-five metres from the entrance gates. The plan of the scene drawn up by the investigator showed that the applicant’s son had started running along the road towards the gates from thirty metres back. He had passed the gates without any attempt being made to stop him. The plan also indicated that junior sergeant L. had also passed the gates in pursuit of the applicant’s son and, having run another seven metres beyond them, had stopped and shot Mr Putintsev. A blood stain measuring sixty by forty centimetres was discovered seventy-three metres from the place where Mr L. had started shooting, on the road between two fences separating the main grounds of the military unit and the grounds of the disciplinary division where the applicant had been detained. The plan also included a drawing of the applicant’s son’s path from the place where he had started running to the blood stain. According to the drawing, having passed the gates of the hospital grounds, he had been running towards the checkpoint of the main grounds of the military unit situated right across from the hospital gates and then, having turned, had sprinted along the road between the two fences.
10. The investigator seized the applicant’s son’s uniform and underwear, having made photos of the clothes and a detailed description of the stains and damage to them. The photos showed a blood-soaked undershirt and winter underpants. The investigator also took possession of Mr L.’s AK-74 automatic machine gun and the ammunition, including fifty-seven live cartridges and two used ones, collected by officer K. and other soldiers after the shooting.
11. Several hours later Mr L. was interrogated as a witness. He described his dispute with the applicant’s son which had caused him a lip injury and their subsequent visit to the military hospital for medical examinations. Junior sergeant L. insisted that on the way to the hospital officers had warned the applicant’s son that he would be shot should he attempt to escape. That had not stopped the applicant’s son from running away on their way back from the hospital. Mr L. stressed that despite his warning shouts and his firing two warning shots into the air, Mr Putinstev had continued running away, at the same time inviting Mr L. and accompanying officer K. to catch him. Mr L. had shot at the applicant’s son once, aiming at his legs. Approximately seventy metres had separated the applicant’s son from Mr L. at the moment of the shooting. At the same moment in time, officer K. had been approximately twenty metres away from the applicant’s son, having continued to run after him. The applicant’s son had fallen to the ground and officer K. had ordered Mr L. to call for an ambulance. After the applicant’s son had been taken to hospital, officer K. had told Mr L. to collect the used cartridges. They had been able to recover two of them: one from the two warning shots and one from the target shot.
12. A search for the bullet with which the applicant had been shot, including with the use of mine detectors, did not produce any results.
13. On 16 February 2002 the investigator ordered a report from the military unit’s psychologist to address the applicant’s son’s psychological condition preceding the incident. The psychologist indicated that during interviews the applicant’s son had “hinted at the presence of hazing in the unit directed towards him by junior commanding officers (sergeants) [whose] last names he [had] not mentioned [and] [had] complained of the impossibility of establishing social contacts and friendly relationships within his military unit”. At the same time, the psychologist described Mr Putintsev as a psychologically settled, stubborn and determined person, able to defend his opinion “until the very end by any means”. Having observed during an interview the applicant’s son’s breaking down and developing signs of depression, the psychologist recommended his transfer to another military unit without giving him access to firearms and placing him under psychological supervision in the new unit.
14. In the days following the shooting the investigator interviewed the applicant’s son’s fellow soldiers, including those who had been on duty at the checkpoint of the military unit on 15 February 2002 and had witnessed the incident, personnel of the military hospital and the unit’s commanding officers. The witnesses described Mr Putintsev as a calm, but unsociable, person and denied subjecting him or witnessing his being subjected to any form of harassment or ill-treatment. Certain witnesses had seen the applicant’s son on the ground after the shooting with his hips and stomach covered in blood. Several of them had helped to transport him to the hospital.
15. The commandant of the garrison stated that he had had a talk with the applicant’s son following his unauthorised leave. Mr Putintsev had allegedly confided to him that he had had problems with fellow soldiers from the Caucasus but had refused to identify them. The commandant insisted that while giving the evening’s instructions to the convoy groups he had paid particular attention to Mr Putintsev, having heard that he had been “mentally unbalanced”. On the morning of 15 February 2002 the officer had received a report of a dispute between the applicant’s son and a convoy soldier, Mr M., following Mr Putintsev’s refusal to submit to a search. The officer had had a talk with the applicant’s son, during which the latter had complained that convoy soldiers had been beating him up. The commandant had called the officer in charge of the convoy unit, junior sergeant L., and soldier M. and had ordered junior sergeant L. to examine the applicant’s son in their presence to verify whether he had had any injuries. Having complained of insufficient space in the office to perform the examination, Mr L. had asked for the commandant’s permission to do it in another room, where he had then taken Mr Putintsev. On their return only a few minutes later, Mr L. had had an injured lip and had complained of the applicant’s son having attacked him. The commanding officer had authorised a medical examination of the applicant’s son and Mr L. by hospital doctors. He had offered Mr L. the opportunity to step down from convoy duty but the latter had assured him that he had no hard feelings towards the applicant’s son and that he was willing to escort Mr Putintsev to the hospital.
16. The investigator also studied materials of an internal inquiry into the applicant’s son’s unauthorised leave. The case file included Mr Putintsev’s explanation of his decision to leave the military unit. He stated that he had felt lonely and depressed and had been tired of military service. The inquiry had led to a decision refusing the institution of criminal proceedings against Mr Putintsev in view of his sincere remorse and the fact that his decision to leave the premises of the military unit had been no more than an attempt to cast off the difficulties of life in the army.
17. On 27 February 2002 the investigation into the shooting took a new turn in view of the applicant’s son’s death. The investigator of the military prosecutor’s office authorised a post-mortem forensic examination, having asked experts to identify the cause of Mr Putintsev’s death and the distance from which the shot had been fired. The experts were also to list any injuries present on the applicant’s son’s body and to determine their nature. In report no. 945 experts identified a perforating wound from the gunshot as the cause of the applicant’s son’s death.
18. Another expert examination was meant to determine whether Mr L.’s actions had complied with military regulations, in particular whether the use of a gun had been lawful. An expert report issued on 9 March 2002 confirmed that Mr L. had been under an obligation to open fire at Mr Putintsev during his escape. Mr L. had complied, to the letter, with the rules regulating the use of firearms in such a situation. He had only shot at the applicant’s son after he had exhausted other means of preventing an escape. He had warned Mr Putintsev that the firearm would be used and had made warning shots.
19. On 1 March 2002 the investigator seized the applicant’s son’s personal belongings, including a number of letters to him from family members and letters in which Mr Putintsev had complained of being in poor health, extremely homesick and depressed, experiencing difficulties in adjusting to the army, degrading treatment of soldiers by officers, and forced labour for the officers’ benefit to the point of being treated like a slave.
20. On 11 March 2002 the military prosecutor of military unit no. 56681 assigned a group of investigators to take over the applicant’s son’s case.
21. In March 2002 the investigators performed additional interrogations of a large number of witnesses, having attempted to clarify certain aspects of the applicant’s son’s military service, his relations with fellow soldiers and commanding officers, and so on.
22. A month later the criminal proceedings were closed in view of the absence of criminal conduct on Mr L.’s part. The investigator concluded that Mr L. had followed, to the letter, the rules regulating the use of firearms to prevent the escape of an arrestee. On 28 June 2002 the military prosecutor for the First Supervisory Division quashed that decision and reopened the criminal proceedings, having considered that the investigators had not sufficiently thoroughly studied alternative versions of the events of 15 February 2002, including one of intentional murder as a result of hazing in the military unit, and had omitted to perform a number of important investigative steps, including an expert examination of the machine gun and used cartridges seized from the scene, a reconstruction with the participation of Mr L., an expert examination of the applicant’s son’s clothes, and an assessment of the quality of the medical assistance provided to him in hospital after the shooting.
23. Having fully complied with the instructions laid down in the decision of 28 June 2002 and having re-interviewed a large number of witnesses, on 14 September 2002 the investigator again closed the criminal proceedings, having considered that there was no evidence of a criminal offence. The final reasoning of the decision read as follows:
“[T]he actions of Mr L., who on 15 February 2002, while being on convoy duty... preventing the escape of Mr Putintsev, a detainee for a disciplinary offence, having [the character of] “shoot to kill”, [and] as a result of which Mr Putintsev was injured and soon died, contain the formal features of the criminal offence proscribed by Article 111 § 4 of the Russian Criminal Code. However, taking into account the fact that Mr L. used the weapon in compliance with Article 201 of the Statute of Garrison and Sentry Service in the Military Forces of the Russian Federation [...] and that he did not violate his responsibilities imposed on him by the [...] Statute, it is necessary to conclude that his actions do not constitute criminal conduct”.
24. On 10 February 2003, following the applicant’s complaint, a deputy military prosecutor overturned the decision of 14 September 2002 and reopened the investigation. The deputy prosecutor held that the investigator’s decision had been premature and ordered him to take a number of additional investigative measures.
25. On 7 May 2003 a deputy military prosecutor of military unit no. 56681 closed the criminal proceedings, finding no case to be answered. The relevant parts of the decision read as follows:
“On 15 February 2002, at 2.10 p.m., on an order of the military commandant [the applicant’s son] was escorted by junior sergeant L. and an assistant to the head of the convoy regiment, senior lieutenant K., to the military hospital of military unit no. 93421 for a medical examination.
On their way back to the detention unit, at 2.30 p.m., [the applicant’s son] absconded near isolation wards situated in the grounds of the military hospital. In order to prevent [the applicant’s son] committing any criminal acts, junior sergeant L. warned [him] by shouting: ‘Stop, [I] will shoot’, but the [applicant’s son] did not obey the order. [Junior sergeant] L. disabled the safety device of his AK-74 submachine gun and changed the gun lever to trigger single shots. He put a bullet in the firing chamber and fired two warning shots in the air. [The applicant’s son] did not react in any way and continued running.
[Senior lieutenant] K. ran after [the applicant’s son] to try to catch him, but he tripped and fell. Then junior sergeant L. ran after [the applicant’s son] and, realising that he could not catch up with [him], stopped near the entrance gate to the military hospital and fired one shot at [the applicant’s son], as a result of which [the applicant’s son] sustained a bodily injury in the form of a perforating bullet wound to the right buttock, causing injuries to the main blood vessels, right hip and bone structure, accompanied by a disturbance of the blood flow to the right lower extremity with subsequent necrobiotic changes in the crus muscles and complications in the form of acute renal failure, the appearance of stress ulcers on the large and small intestines and their subsequent perforation, [and] the development of fecal peritonitis and general poisoning of his system, [resulting in] serious damage to his health.
An ambulance took [the applicant’s son] to the surgical department of the military hospital of military unit no. 93421, where he underwent surgery.
On 18 February 2002 [the applicant’s son] was taken to Krasnoyarsk Regional Hospital no. 1 where on 27 February 2002, at 8.45 a.m., he died from his injuries.
[Junior sergeant] L., questioned as a witness during the pre-trial investigation, stated that ... on 14 February 2002 he had taken up convoy duty in the detention unit of the Uzhur Town Garrison. [The applicant’s son], a soldier in military unit no. 39982, had been kept in the detention unit as a disciplinary detainee. On 15 February 2002, at 2.10 p.m., on an order from the military commandant, [the applicant’s son], escorted by Mr L. and [officer] K., had been taken to the military hospital of military unit no. 93421 for a medical examination. After the examination, at 2.30 p.m., they had left the hospital and had headed back to the detention unit. Officer K. had slipped near the hospital isolation wards and at that moment [the applicant’s son] had started running towards the checkpoint yelling ‘try to catch me’. Mr K. and Mr L. had run after him. In order to prevent [the applicant’s son] from committing any criminal acts, Mr L. had warned [him] by shouting: ‘Stop, [I] will shoot’. However, [the applicant’s son] had not complied with the order. Then Mr L. had stopped, disabled the safety device of his submachine gun, changed the gun lever to trigger single shots and fired a warning shot in the air. [The applicant’s son] had not reacted and had continued running. Mr L. had run after him again. After ten metres, he had fired another warning shot in the air. [The applicant’s son] had continued running. Then Mr L. had fired a single shot at him, aiming at his legs. [The applicant’s son] had fallen down after the shot. Officer K ... had approached [the applicant’s son] and had told Mr L. to call an ambulance. Junior sergeant L. had run to the hospital and then, together with a doctor on duty, had run to the place where [the applicant’s son] was lying. The doctor had examined [the applicant’s son], [had] placed him in the ambulance and [had] taken [him] to the hospital.
Junior sergeant L. confirmed his statements during a reconstruction [conducted as part of the] investigation on 16 August 2002.
Officer K., questioned during the pre-trial investigation as a witness, stated that he had been in contractual military service in military unit no. 12440. At night on 14 February 2002 he had gone on duty as a garrison guard in the detention unit of the Uzhur Garrison in the capacity of an assistant to the head of the convoy regiment ... On 15 February 2002, at 2.00 p.m., on the commandant’s order, he and junior sergeant L. had escorted [the applicant’s son] to the military hospital of military unit no. 93421 for a medical examination. After the examination, he, Mr L. and [the applicant’s son] had left the hospital and had headed back to the detention unit. On their way to the detention unit, near the hospital isolation wards, [the applicant’s son] had suddenly started running towards the hospital entrance gates and had yelled: ‘Try to catch and hit me’. At the same moment officer K. had slipped and had been unable to apprehend [the applicant’s son]. Junior sergeant L. had immediately shouted to [the applicant’s son]: ‘Stop, [I] will shoot’, but [the applicant’s son] had continued running. Mr L. had fired a warning shot in the air and had run after [the applicant’s son]. [The applicant’s son] had not reacted in any way and had run through the hospital entrance gates and had continued running along the fence. Mr L. had stopped near the gates and had fired a second warning shot in the air. [The applicant’s son] had continued running, not paying attention to the shots and shouts. After Mr L. had run through the hospital gates, he had fired at [the applicant’s son] and had wounded him. At that moment officer K. had been 15-20 metres away from [the applicant’s son]. After that he had approached [the applicant’s son] and had immediately called an ambulance, which had taken [the applicant’s son] to the hospital.
Officer K. confirmed his statements during a reconstruction [conducted as part of the] investigation on 16 August 2002.
N., questioned as a witness during the pre-trial investigation, stated that he had been in mandatory military service in military unit 12463. On 14 February 2002 he had taken up guard duty at the checkpoint. That checkpoint was situated opposite the military hospital of military unit no. 93421. On 15 February 2002, at 2.30 p.m., he had been outside, near the entrance gates of checkpoint no. 4, and had been inspecting ... cars ... He had been alone outside. When he had once again closed the gates ... he had heard someone shout ‘Stop, [I] will shoot’, from the direction of the hospital. He had noticed a soldier running from the hospital and two people, an officer and a soldier with a gun, running after him. The fleeing soldier had not reacted to the shouts ... and had continued running, then the soldier with the gun had fired a shot in the air, but [the applicant’s son] had continued running and had not reacted in any way. Then [Mr N.] had heard another shot in the air but the situation did not change. The fleeing soldier had started running on the road alongside the fence and Mr N. had no longer been able to see [him] from where he had been standing at checkpoint no. 4; he had only been able to see when the soldier with the gun had run through the hospital gates and had fired at the fleeing [soldier]. [Mr L.] had fired once. After that Mr N. had gone onto the road and had looked in the direction where the soldier with the gun had fired. Mr N. had seen that the [soldier who had been fleeing] was lying on the verge of the road and that the officer was standing near him; [the officer] had told the soldier with the gun to run to the hospital for an ambulance. Approximately 5 or 10 minutes later a doctor, and then an ambulance, had arrived. Mr N. remembered clearly that the soldier with the gun had only fired an aimed shot once and had wounded the fleeing soldier with the third shot, as the first two shots had been fired in the air.
The head of military unit no. 39982, Lieutenant Colonel B., questioned as a witness in the criminal case, stated that he had only known [the applicant’s son] from 6 to 12 February 2002. He described him as a reserved, unsociable person. [The applicant’s son] had overreacted to commanding officers’ remarks. He had had no friends. On 9 February 2002 ... [Mr B.] had been informed that [the applicant’s son] had left the military unit without permission. A search had produced no results. On 11 February 2002, at 11.00 a.m., Mr B. had been notified that the Koptevo District Police Department had apprehended a soldier who had identified himself as Mr Ivanov and had refused to show a military card. It had turned out that that apprehended person had been [the applicant’s son]. [Mr Putintsev] had refused to explain the reasons for his absence without leave. Mr B. had brought [the applicant’s son] back to the military unit, had authorised his disciplinary detention and had had him detained in the garrison’s detention unit. [The applicant’s son] had had no injuries on his face. He had had a dry abrasion which, according to him, he had sustained during work in a study unit in the town of Pereslavl-Zalesskiy.
Mr Ko., questioned as a witness in the criminal case, testified that he worked as a surgeon at Regional Clinical Hospital no. 1. On 18 February 2002 he had been working, and sometime after 3.00 p.m. he had been called to the hospital admissions room. A soldier, [the applicant’s son], who had suffered a gunshot wound, was lying on a stretcher. During an examination no injuries, save for a gunshot wound, had been discovered on his body.
...
According to forensic medical examination no. 945 of the corpse of [the applicant’s son]:
1. The death of [the applicant’s son] resulted from a perforating bullet wound to the right buttock, causing injuries to the main blood vessels, right hip and bone structure ... The conclusion made as to the cause of death was confirmed by the presence of entrance and exit wounds on the skin, [and by] gross and microscopic impressions.
2. According to the medical documents submitted, death was pronounced at 4.45 a.m. on 27 February 2002.
...
It was impossible to identify from what distance the gunshot was fired and to give a detailed description of the exit and entrance wounds because they were treated surgically.
The injury caused severe damage to the [applicant’s son’s] health, which endangered his life at the moment when it was sustained and had a direct causal link with [the applicant’s son’s] death.
...
According to the results of outpatient complex forensic psychiatric examination no. 209 performed on 12 April 2002 in respect of the period prior to [the applicant’s son’s] absence without leave from the military unit and his subsequent escape from the detention unit, [the applicant’s son] had not exhibited any signs of a psychiatric illness; he had exhibited the following personality traits – attention seeking, stubbornness, a tendency to hysteria, unwillingness to comply with commonly accepted norms and rules and to serve in the army, persistent desire to achieve goals by any means, tendency to overestimate his abilities, and lack of control over his actions in emotionally meaningful situations, [but] which did not render him incapable of fully understanding the actual nature and dangerousness of his actions or controlling them. During his escape from the guard he had not exhibited signs of any temporary mental disorder ..., his actions were committed deliberately, for a purpose and [the applicant’s son] was capable of fully understanding the nature and dangerousness of his actions and of controlling them.
According to the results of the forensic medical report on the medical assistance provided to the [applicant’s son]:
1. The cause of [the applicant’s son’s] death was a single gunshot wound to the right buttock and iliac region with gunshot fractures of the right trochanter, pubic and ischial bones, an injury to the right iliac arteries and vein accompanied by massive blood loss, extensive haemorrhaging in the retroperitoneal space, traumatic and hemorrhagic shock and complicated multiple organ failure.
2. [The applicant’s son’s] surgical treatment in the hospital ... was necessary, technically correct and timely.
3. [The applicant’s son’s] postsurgical treatment in the hospital and subsequently in the Krasnoyarsk Regional Clinical Hospital was performed correctly and to the necessary extent.
4. No mistakes during the surgical and postsurgical treatment of [the applicant’s son] in the hospital and subsequently in the Krasnoyarsk Regional Clinical Hospital were detected.
According to the results of ballistic examination no. 1478:
...
3. Three cartridge cases submitted for examination are constituent elements of live cartridges ... for an AK-74 submachine gun ...;
4, 5, 6. There are two holes [in the clothes (an overcoat, pants, coat) submitted for examination] caused by mechanical force: those holes were caused by a gunshot; one is the entrance hole and the other is the exit hole.
...
9. If the overcoat was not buttoned up, the gunshot holes in the military clothes ... submitted for examination were caused by a single bullet fired once;
...
11. The holes in the clothes submitted for examination were caused by a gunshot fired from a distance of no less than 30 centimetres;
...
13. The three cartridge cases submitted for examination were fired from the same AK-74 submachine gun (no. 896397250 4) presented for examination.
A senior expert, Mr V., stated that the distance from which the shot had been made was more than 30 centimetres. It was impossible to identify the distance precisely because the submachine gun presented for examination had a flash hider....
According to military statute examination no. 101 on 9 March 2002:
1. Section 11 of Protocol No. 14 and Article 9 of Section 201 of the Statute of Garrison and Sentry Service in the Military Forces of the Russian Federation determine the procedure for using firearms; they state that a sentry should use a firearm after warning an arrestee (a detainee) who is attempting to escape with a peremptory shout: ‘Stop or [I] will shoot’, and if the order is not complied with, then [the sentry] should shoot.
2. The sentry, junior sergeant L., did not violate the procedure for using firearms in his use of the gun and complied with the requirements set out in Section 201 of the Statute.
3. When a detainee is attempting to escape, a sentry should not run after him; after giving the warning ‘Stop or [I] will shoot’, he must shoot at the detainee.
4. By virtue of Article 24 of Protocol no. 14 of the Statute ... detained soldiers, in a group of no more than fifteen, are to be sent from a detention unit to other [points] in the grounds of a military unit under the guard of one sentry ... On an order of the garrison’s military commandant, officer K., an assistant to the head of the convoy regiment, was also sent to accompany [the applicant’s son] because the latter was liable to leave the military unit without permission. While accompanying [the applicant’s son] Mr K. did not violate any requirement of the Statute.
...
While escorting [the applicant’s son] junior sergeant L. complied with the established procedure, walking three steps to the left behind [the applicant’s son], and [officer] K. walked ahead of the detainee, not violating the requirements of the Statute...
According to statements by soldiers in mandatory military service in military units nos. 39982 and 40250, [the applicant’s son] was not subjected to acts of violence or harassment by other soldiers or officers in the aforementioned units; no one beat him up or intimidated or insulted him or forced him to do any work for them.
Captain Sh. stated ... that on admittance to the detention unit he had examined [the applicant’s son], who had not had any injuries or bruises on his body save for a bruise on the left shank which, according to [the applicant’s son], he had sustained as a result of a fall during his absence from the military unit ... In the detention unit [the applicant’s son] had been given food according to the established regulations; he had not made any complaints concerning the conditions of detention in the detention unit. While Mr Sh. had been on duty no one had committed acts of violence or harassment towards [the applicant’s son].
...
A medical officer in military unit no. 39982, Ms F., stated ... that on [the applicant’s son’s] arrival from the study unit in the town of Pereslavl-Zalesskiy she had examined him ... During the first examination she had not noticed any injuries or bruises or any other signs of possible beatings on [the applicant’s son’s] body. When she had examined [the applicant’s son’s] head she had noticed an infected injury on his scalp; as per [the applicant’s son’s] explanations he had sustained that injury when he had hit his head on a low door frame in Pereslavl–Zalesskiy. She had examined soldiers every day, and during [the applicant’s son’s] service in military unit no. 39982 she had not discovered any injuries, bruises or other signs of beatings on his body. [The applicant’s son] had not made any complaints about the state of his health.
A medical officer in military unit no. 40250, Ms O., made statements identical to those by Ms F., and she additionally stated that ... in January 2002 [the applicant’s son] had been admitted to hospital in military unit no. 93421 with a diagnosis of “difficulty in adapting”. During a conversation with a doctor, T., she had found out that [the applicant’s son] had wanted to be transferred to a communication centre of military unit no. 39982 as he had been unable to adapt in military unit no. 40250. At the same time, [the applicant’s son] had not told doctor T. that he had been harassed by his fellow soldiers or other individuals.
Major A. stated that ... at approximately 2.20 p.m. [on the day of the shooting] [the applicant’s son] and Mr L. had been brought for a medical examination. During the examination [the applicant’s son] had stripped naked and Mr A. had examined him, searching for injuries, bruises, scratches, etc. He had performed the examination starting from [the applicant’s son’s] head and face and finishing with his legs. During the examination he had discovered an injury covered by a brown scab on [the applicant’s son’s] scalp. He had concluded that the injury had been sustained 4–5 days before. He had also discovered a small injury on [the applicant’s son’s] left shank which could also have been sustained 4–5 days before. He had not discovered any other injuries on [the applicant’s son’s] body. When he had examined Mr L., he had discovered a lacerated wound, measuring approximately 1 centimetre, on the inner side of the upper lip. That injury could have been sustained 30 minutes before their arrival at the hospital. Subsequently, [major A.] had recorded [the applicant’s son’s] and Mr L.’s injuries in letters of referral for medical examinations.
According to [the applicant’s son’s] written statements, he had sustained an injury to his scalp in the study unit in Pereslavl-Zalesskiy in October 2001.
During the pre-trial investigation, the allegations that [the applicant’s son] had been subjected to acts of violence or harassment by other servicemen during his service in military units nos. 39982 and 40250 were not confirmed. The allegations of extortion of money, personal and military belongings from [the applicant’s son] were not confirmed either. It is established that [the applicant’s son] had sustained an injury to the scalp during his service in the study unit in Pereslavl-Zalesskiy; he had sustained an injury to the left shank as a result of a fall during his absence without leave from the military unit between 8 and 12 February 2002; a bruise on [the applicant’s son’s] right eye had been sustained as a result of resuscitation actions taken in Krasnoyarsk Regional Hospital no. 1; no-one is responsible for causing injuries to [the applicant’s son].
Thus, it is necessary to conclude that [the applicant’s son’s] attempt to escape from the detention unit was caused by his own disorderly actions and lack of understanding of the actual nature and social harmfulness of his actions; it had a purposeful and conscious character and was not caused by any external factor.
In his use of the gun, junior sergeant L. did not violate the procedure on the use of firearms; [he] complied with all the necessary requirements set out in Section 201 of the Statute.”
26. The applicant appealed against the decision of the deputy military prosecutor to the Military Court of the 61st Garrison. Amongst other things, she asked the Military Court to grant her victim status in the criminal case concerning her son’s death to enable her to claim compensation later on for the pecuniary and non-pecuniary damage which had resulted from his death.
27. On 3 July 2003 the Military Court, endorsing the findings made by the deputy prosecutor in his decision of 7 May 2003, dismissed the applicant’s complaint. As regards the applicant’s request for victim status, the Military Court held:
“By virtue of Article 42 of the Code of Criminal Procedure, a victim is a person who sustained physical, pecuniary or non-pecuniary damage as a result of a crime. As [the deputy military prosecutor] refused to institute criminal proceedings against junior sergeant L., and the criminal case concerning the death of [the applicant’s son] was closed because there was no evidence of a crime, it is necessary to state that [the applicant’s] request for victim status due to the death of her son is unfounded.”
28. On 27 August 2003 the Military Court of the 3rd Command quashed the judgment of the Military Court of the 61st Garrison and remitted the case for fresh examination. A copy of the decision of 27 August 2003 was not submitted to this Court.
29. On 28 January 2004 the Military Court of the 61st Garrison, again relying on the deputy military prosecutor’s decision of 7 May 2003, found that the use of firearms against the applicant’s son had been lawful. The court noted that the applicant’s son had been aware that he was under arrest and had understood the consequences of his attempt to escape, including the possible use of firearms, and that junior sergeant L. had had no choice but to follow the rules on the use of firearms laid down by the Statute of Garrison and Sentry Service. The Military Court also dismissed the applicant’s request for victim status.
30. On 24 March 2004 the Military Court of the 3rd Command upheld the judgment of 28 January 2004, endorsing the reasoning of the firstinstance court.
31. The Disciplinary Statute of the Military Forces of the Russian Federation, adopted by Presidential Decree no. 2140 on 14 December 1993 and in force until 1 January 2008, laid down grounds for the imposition of disciplinary penalties on servicemen, including soldiers performing mandatory military service. In particular, the Disciplinary Statute permitted detention for up to ten days of a soldier for a breach of military discipline or public order (§ 51). A decision authorising the detention was to be taken by the commandant or head of the unit involved (§ 85). An inquiry into the circumstances of an alleged disciplinary offence was to precede a decision by which a disciplinary penalty was imposed. The inquiry was to, inter alia, take account of the purpose for which the alleged disciplinary offence was committed, whether the soldier was guilty of the offence, what the consequences of the offence were and whether there were mitigating or aggravating circumstances (§ 86). A decision to impose a disciplinary penalty was ordinarily to be taken within a day after the commandant had learned about the offence (§ 88).
32. The Statute of Military Service of the Russian Federation, adopted by the same Presidential Decree as the Disciplinary Statute and in force until 1 January 2008, contained an exhaustive list of cases in which the use of firearms by servicemen was authorised. In particular, the relevant part of the Statute read as follows:
“11. While performing military service duties and, if necessary, during out-of-office hours, servicemen have the right to store, carry and use firearms.
The procedure for storing and using firearms by servicemen is laid down in the present Statute.
As a measure of last resort, servicemen have the right to use firearms personally or within their military subdivision:
to repel an attack by a group of persons or an armed person on guarded military or State installations, as well as on military units and divisions, buildings and premises of military units, military echelons, motorcades or single cars and convoy units, if it is impossible to use other means and measures to protect them;
to prevent an attempt to take possession, by force, of firearms and military equipment, if it is impossible to use other means and measures to protect them;
to protect military personnel and civilians from an attack posing a threat to their lives and limb, if it is impossible to use other means and measures to protect them;
to apprehend a person who has committed a crime or is committing a serious or particularly serious criminal offence or an armed person who refuses to comply with lawful orders to disarm, if it is impossible to use other means and measures to suppress the resistance, to apprehend the criminal or to seize the weapon.
Servicemen performing convoy duty have the right to use firearms in the cases and in line with the procedure established by the Statute of Garrison and Sentry Service in the Military Forces of the Russian Federation.
Moreover, a commanding officer has the right to use firearms personally or to order the use of firearms to restore discipline and order in the event of open resistance from a subordinate, when his actions clearly pursue [the purposes] of treason or disruption of a military mission in battlefield conditions.
12. A warning that a weapon may be used should precede its use. A weapon may be used without a warning [to repel] an unexpected and armed attack [and] an attack with the use of military equipment, vehicles, aircrafts, sea and river vessels; [to prevent] an escape of an armed [detainee] or [when the escape is effected] with the use of vehicles or from moving vehicles, at the night time or in other restricted visibility conditions.
Servicemen have the right to use firearms to make an alert signal or to call for help, as well as [to use the weapon] against an animal which threatens the life or health of individuals...”
33. The Statute of Garrison and Sentry Service in the Military Forces of the Russian Federation, in force at the material time, regulated the use of firearms and force in convoy and sentry service. In particular, Article 201 provided as follows:
“A sentry guarding arrestees (detainees) in a disciplinary unit must:
- warn arrestees (detainees) attempting to escape with an order: ‘Stop, or [I] will shoot’, and if the order is not complied with [the sentry] should use a firearm against them.”
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 2
NON_VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-114154
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KOKHREIDZE v. GEORGIA AND RAMISHVILI v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant in the first case, Mr David Kokhreidze (“the first applicant”), was born in 1961. The applicant in the second case, Mr Shalva Ramishvili (“the second applicant”), was born in 1971. Both applicants are Georgian nationals, currently live in Tbilisi and were represented before the Court by Mrs Lia Mukhashavria and Mr Vakhtang Vakhtangidze, lawyers practising in Georgia.
3. On 29 March 2006 the Tbilisi City Court convicted the applicants, who were co-founders of and shareholders in a private media company, of conspiracy to commit extortion. The first applicant was sentenced to three years and the second applicant to four years in prison (for more details concerning the criminal proceedings, see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 9-42, 27 January 2009).
4. On 30 June 2006 the Tbilisi Appeal Court upheld the conviction.
5. On 16 October 2006 the Supreme Court of Georgia, sitting privately, declared the applicants’ appeal against the conviction on points of law inadmissible on the ground that it lacked significant legal content. The criminal proceedings were thus finally terminated.
6. As submitted by the applicants and confirmed by a postal receipt, the final decision of 16 October 2006 was served on them in Rustavi no. 2 Prison, where they were serving their sentences at that time, on 1 November 2006.
7. On 16 April 2007 application forms were lodged with the Court on behalf of the applicants. The forms were signed only by the applicants’ representatives and did not include authority forms issued by the applicants for their representation before the Court.
8. On 23 April 2007 as regards the first applicant’s case, and on 30 May 2007 as regards the second applicant’s case, the Court, using a standard form of preliminary correspondence, brought the representatives’ attention to the fact that the applications could not be considered to be complete, as they had neither been signed by the applicants in person nor supplemented by authority forms issued by them. The Court invited the representatives to submit the missing authority forms without undue delay, on pain of leaving their cases without examination.
9. On 4 June 2007 the representatives submitted an authority form signed by the second applicant, Mr Ramishvili. The accompanying letter did not contain any explanation for the delay.
10. With respect to the first applicant’s case, on 4 July 2007 the Court sent a second reminder to the representatives that the registration of the application could not be proceeded with in the absence of an authority form issued by the applicant. In reply, by a letter of 24 July 2007, the representatives finally submitted an authority form signed by Mr Kokhreidze. No explanation for that delay was given either.


ITEMID: 001-98401
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF FATULLAYEV v. AZERBAIJAN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1;Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1976 and lives in Baku.
7. The applicant was the founder and chief editor of the newspapers Gündəlik Azərbaycan, published in the Azerbaijani language, and Realny Azerbaijan (“Реальный Азербайджан”), published in the Russian language. The newspapers were widely known for often publishing articles harshly criticising the Government and various public officials.
8. Prior to the events complained of in this application, the applicant had been sued for defamation in a number of sets of civil and criminal proceedings instituted following complaints by various high-ranking government officials, including cabinet ministers and members of parliament. In the most recent set of proceedings, on 26 September 2006 the applicant was convicted of defamation of a cabinet minister and conditionally sentenced to two years' imprisonment. Moreover, according to the applicant, at various times he and his staff had received numerous threatening phone calls demanding him to stop writing critical articles about high-ranking officials or even to completely cease the publication of his newspapers.
9. In 2007 two sets of criminal proceedings were brought against the applicant in connection with, inter alia, two articles published by him in Realny Azerbaijan.
10. In 2005 the applicant visited, as a journalist, the area of NagornoKarabakh and other territories controlled by the Armenian military forces. This was one of a few exceptionally allowed and organised visits by Azerbaijani nationals to those territories and to Armenia in the years following the Nagorno-Karabakh war, as movement across the front line in Nagorno-Karabakh and across the Armenian-Azerbaijani border remains severely restricted to this day from both sides. During his visit he met, among others, some officials of the self-proclaimed, unrecognised “Nagorno-Karabakh Republic” and some ordinary people. In the aftermath of this visit, in April 2005 the applicant published an article called “The Karabakh Diary” (Russian: “Карабахский дневник”) in Realny Azerbaijan.
11. In the article, styled as a diary, the applicant described his visits to several towns, including Lachin, Shusha, Agdam and Khojaly, which had formerly been inhabited primarily by ethnic Azerbaijanis who had been forced to flee their homes during the war. He described both the ruins of war and the new construction sites that he had seen in those towns, as well as his casual conversations with a number of local Armenians he had met during his visit.
12. One of the topics discussed in “The Karabakh Diary” concerned the Khojaly massacre of 26 February 1992. Discussing this topic, the applicant made certain statements which could be construed as differing from the commonly accepted version of the Khojaly events according to which hundreds of Azerbaijani civilians had been killed by the Armenian armed forces, with the reported assistance of the Russian (formerly Soviet) 366th Motorised Rifle Regiment, during their assault on the town of Khojaly in the course of the war in Nagorno-Karabakh. Specifically, the article contained the following passages:
“Having seen Khojaly, I could not hide my astonishment. This Azerbaijani town, which had been razed to the ground, has been completely reconstructed and converted into a town called Ivanovka, named after an Armenian general who had actively participated in the occupation of Khojaly. The Khojaly tragedy and the deep wounds inflicted on our soul by the Armenian expansionism on this long-suffering Azerbaijani land permeated all my meetings in Askeran [a town in Nagorno-Karabakh close to Khojaly]. How so? Can it be true that nothing human is left in these people? However, for the sake of fairness I will admit that several years ago I met some refugees from Khojaly, temporarily settled in Naftalan, who openly confessed to me that, on the eve of the large-scale offensive of the Russian and Armenian troops on Khojaly, the town had been encircled [by those troops]. And even several days prior to the attack, the Armenians had been continuously warning the population about the planned operation through loudspeakers and suggesting that the civilians abandon the town and escape from the encirclement through a humanitarian corridor along the Kar-Kar River. According to the Khojaly refugees' own words, they had used this corridor and, indeed, the Armenian soldiers positioned behind the corridor had not opened fire on them. Some soldiers from the battalions of the NFA [the National Front of Azerbaijan, a political party], for some reason, had led part of the [refugees] in the direction of the village of Nakhichevanik, which during that period had been under the control of the Armenians' Askeran battalion. The other group of refugees were hit by artillery volleys [while they were reaching] the Agdam Region.
When I was in Askeran, I spoke to the deputy head of the administration of Askeran, Slavik Arushanyan, and compared his recollection of the events with that of the Khojaly inhabitants who came under fire from the Azerbaijani side.
I asked S. Arushanyan to show me the corridor which the Khojaly inhabitants had used [to abandon the town]. Having familiarised myself with the geographical area, I can say, fully convinced, that the conjectures that there had been no Armenian corridor are groundless. The corridor did indeed exist, otherwise the Khojaly inhabitants, fully surrounded [by the enemy troops] and isolated from the outside world, would not have been able to force their way out and escape the encirclement. However, having crossed the area behind the Kar-Kar River, the row of refugees was separated and, for some reason, a group of [them] headed in the direction of Nakhichevanik. It appears that the NFA battalions were striving not for the liberation of the Khojaly civilians but for more bloodshed on their way to overthrow A. Mutalibov [the first President of Azerbaijan] ...”
13. More than a year after the publication of the above article, during the period from December 2006 to January 2007, a person registered under the username “Eynulla Fatullayev”, identifying himself as the applicant, made a number of postings on the publicly accessible Internet forum of a website called AzeriTriColor. The postings were made in a specific forum thread dedicated to other forum members' questions to the forum member named “Eynulla Fatullayev” about the contents of “The Karabakh Diary”. In his various answers to those questions, the person posting under the username “Eynulla Fatullayev” made, inter alia, the following statements:
“I have visited this town [Naftalan] where I have spoken to hundreds (I repeat, hundreds) of refugees who insisted that there had been a corridor and that they had remained alive owing to this corridor ...
You see, it was wartime and there was a front line... Of course, Armenians were killing [the civilians], but part of the Khojaly inhabitants had been fired upon by our own [troops]... Whether it was done intentionally or not is to be determined by investigators. ...
[They were killed] not by [some] mysterious [shooters], but by provocateurs from the NFA battalions ... [The corpses] had been mutilated by our own ...”
14. On 23 February 2007 Ms T. Chaladze, the Head of the Centre for Protection of Refugees and Displaced Persons, brought a civil action against the applicant in the Yasamal District Court. She claimed that the applicant had “for a long period of time insulted the honour and dignity of the victims of the Khojaly Tragedy, persons killed during those tragic events and their relatives, as well as veterans of the Karabakh War, soldiers of the Azerbaijani National Army and the entire Azerbaijani people”. She alleged that the applicant had done so by making the above-mentioned statements in his article “The Karabakh Diary” as well as by making similar insulting statements on the forum of the AzeriTriColor website. Ms Chaladze attributed the authorship of the Internet forum postings made from the forum account with the username “Eynulla Fatullayev” to the applicant.
15. In his submissions to the court, the applicant argued that the forum postings at the AzeriTriColor website had not been written by him and denied making these statements. He also argued that, in “The Karabakh Diary”, he had merely reported the information given to him by persons whom he had interviewed.
16. The Yasamal District Court, sitting as a single-judge formation composed of Judge I. Ismayilov, heard evidence from a number of refugees from Khojaly, all of whom testified about their escape from the town and noted that they had not been fired upon by Azerbaijani soldiers and that the applicant's assertions concerning this were false. Furthermore, having examined electronic evidence and witness statements, the court established that the postings on the AzeriTriColor forum had indeed been made by the applicant himself and that they had been posted in response to various questions by readers of Realny Azerbaijan. The court found that the applicant and the newspaper had disseminated false and unproven statements tarnishing the honour and dignity of the survivors of the Khojaly events.
17. In view of the above findings, on 6 April 2007 the Yasamal District Court upheld Ms Chaladze's claim and ordered the applicant to publish, in Realny Azerbaijan and on related websites, a retraction of his statements and an apology to the refugees from Khojaly and the newspaper's readers. The court also ordered the applicant and Realny Azerbaijan to pay 10,000 New Azerbaijani manats (AZN – approximately 8,500 euros) each in respect of non-pecuniary damage. This total award of AZN 20,000 was to be spent on upgrading the living conditions of the refugees from Khojaly temporarily residing in Naftalan.
18. Thereafter, on an unspecified date, a group of four Khojaly survivors and two former soldiers who had been involved in the Khojaly battle, represented by Ms Chaladze, lodged a criminal complaint against the applicant with the Yasamal District Court, under the private prosecution procedure. They asked that the applicant be convicted of defamation and of falsely accusing Azerbaijani soldiers of having committed an especially grave crime.
19. At a preliminary hearing held on 9 April 2007 the applicant filed an objection against the entire judicial composition of the Yasamal District Court. He claimed that all of the judges of that court had been appointed to their positions in September 2000 for a fixed five-year term and that their term of office had expired in 2005. He therefore argued that the composition of the court meant that it could not be regarded as a “tribunal established by law”. This objection was dismissed.
20. The hearing of the criminal case took place on 20 April 2007 and was presided over by Judge I. Ismayilov, sitting as a single judge.
21. In his oral submissions to the court, the applicant pleaded his innocence. In particular, he denied making the statements on the forum of the AzeriTriColor website and maintained that those statements had been made by some unknown impostor who had used his name for this purpose.
22. The court heard a linguistic expert who gave an opinion on the applicant's statements. The expert testified, inter alia, that, owing to the specific style in which “The Karabakh Diary” had been written, it was difficult to differentiate whether the specific statements and conclusions made concerning the Khojaly events could be attributable to the applicant personally or to those persons whom he had allegedly interviewed in Nagorno-Karabakh. He also noted that it was difficult to analyse separately the specific phrases taken out of the context of the article as a whole, and that it appeared from the context that the author had attempted to convey the positions of both sides to the conflict. The court also heard several witnesses who testified about the Khojaly events and stated that there had been no escape corridor for the civilians and that the civilians had been shot at from the enemy's positions. The court further found that the Internet forum of the AzeriTriColor website, in essence, had replaced the Internet forum of the Realny Azerbaijan website, which had become defunct in 2006, and that the statements posted on that forum under the username “Eynulla Fatullayev” had indeed been made by the applicant himself. Lastly, the court found that, through his statements made in “The Karabakh Diary” and his Internet forum postings, the applicant had given a heavily distorted account of the historical events in Khojaly and had deliberately disseminated false information which had damaged the reputation of the plaintiffs and had accused the soldiers of the Azerbaijani Army (specifically, the two plaintiffs who had fought in Khojaly) of committing grave crimes which they had not committed. The court convicted the applicant under Articles 147.1 (defamation) and 147.2 (defamation by accusing a person of having committed a grave crime) of the Criminal Code and sentenced him to two years and six months' imprisonment.
23. The applicant was arrested in the courtroom and taken to Detention Facility No. 1 on the same day (20 April 2007).
24. On 6 June 2007 the Court of Appeal upheld the Yasamal District Court's judgment of 20 April 2007.
25. On 21 August 2007 the Supreme Court dismissed a cassation appeal by the applicant and upheld the lower courts' judgments.
26. In the meantime, on 30 March 2007, Realny Azerbaijan had published an article entitled “The Aliyevs Go to War” (Russian: “Алиевы идут на войну”). The article was written by the applicant but published under the pseudonym “Rovshan Bagirov”.
27. This analytical article was devoted to the possible consequences of Azerbaijan's support for a recent “anti-Iranian” resolution of the United Nations (UN) Security Council, which had called for economic sanctions against that country. The article referred to the current Azerbaijani government as “the Aliyev clan” and “the governing Family” and expressed the view that the government had sought United States (US) support for President Ilham Aliyev's “remaining in power” in Azerbaijan in exchange for Azerbaijan's support for the US “aggression” against Iran.
28. The article continued as follows:
“It is also known that, immediately after the UN [Security Council] had voted for this resolution, [the authorities] in Tehran began to seriously prepare for the beginning of the 'anti-Iranian operation'. For several years, the military headquarters of the Islamic regime had been developing plans for repulsing the American aggression and counter-attacking the US and their allies in the region. After 24 March 2007 Azerbaijan, having openly supported the anti-Iranian operation, must prepare for a lengthy and dreadful war which will result in large-scale destruction and loss of human life. According to information from sources close to official Paris, the Iranian General Staff has already developed its military plans concerning Azerbaijan in the event that Baku takes part in the aggression against Iran. Thus, the Iranian long-range military air force, thousands of insane kamikaze terrorists from the IRGC [the Islamic Revolution's Guardian Corps] and hundreds of Shahab-2 and Shahab-3 missiles will strike the following main targets on the territory of Azerbaijan ...”
29. The article continued with a long and detailed list of such targets, which included, inter alia, active petroleum platforms on the shelf of the Caspian Sea, the Sangachal Oil Terminal and other petroleum plants and terminals, the BakuTbilisiCeyhan petroleum pipeline and the BakuTbilisi-Erzurum gas pipeline, the building of the Presidential Administration, the building of the US Embassy in Azerbaijan, buildings of various ministries, the Baku seaport and airport, and a number of large business centres housing the offices of major foreign companies doing business in Azerbaijan.
30. Further, it was noted in the article that the Azerbaijani Government should have maintained neutrality in its relations with both the US and Iran, and that its support of the US position could lead, in the event of a war between those two States, to such grave consequences as loss of human life among Azeris in both Azerbaijan and Iran. In this connection, the author noted that the US military forces were already operating four airbases on the territory of Azerbaijan and had expressed an interest in operating the Gabala Radar Station, which was then operated by Russia.
31. The article also discussed the issue of possible unrest, in the event of a conflict with Iran, in the southern regions of Azerbaijan populated by the Talysh ethnic minority, who are ethnically and linguistically close to the Persians. Among other things, the article appeared to imply that the current ruling elite, a large number of whom allegedly came from the region of Nakhchivan, was engaging in regional nepotism by appointing people from Nakhchivan to government posts in southern areas of the country, including the Lenkoran region. In particular, the article stated:
“Thus, the Talysh have long been expressing their discontent with the fact that [the central authorities] always appoint to administrative positions in Lenkoran persons hailing from Nakhchivan who are alien to the mentality and problems of the region. ... The level of unemployment in the region is terribly high, drug abuse is flourishing, every morning hundreds of unemployed Talysh cluster together at the 'slave' [that is, cheap labour] market in Baku. Is this not a powder keg?
But the authorities, seemingly unaware of the danger of the developing situation, are giving preference to their standard methods – repressive measures and paying off the Talysh elite. It seems as if the authorities are deliberately pushing the Talysh into the embrace of Iranian radicals.”
32. The article noted that certain high-ranking Iranian officials and ayatollahs were of Talysh ethnicity, and that there were “several million” Talysh living across the Iranian border who could “support their kin” living in Azerbaijan in the event of a war. Lastly, the article concluded that the Azerbaijani authorities did not realise all the dangerous consequences of the geopolitical game they were playing.
33. On 16 May 2007 the investigation department of the Ministry of National Security (“the MNS”) commenced a criminal investigation in connection with the publication of the article under Article 214.1 of the Criminal Code (terrorism or threat of terrorism).
34. On 22 May 2007 the investigation authorities conducted searches in the applicant's flat and in the office of the Realny Azerbaijan and Gündəlik Azərbaycan newspapers. They found and seized certain photographs and computer disks from the applicant's flat and twenty computer hard drives from the newspaper's office.
35. On 29 May 2007 the applicant was transferred to the MNS detention facility.
36. On 31 May 2007 the Prosecutor General made a statement to the press, noting that the article published in Realny Azerbaijan contained information which constituted a threat of terrorism and that a criminal investigation had been instituted in this connection by the MNS. This statement was reported on Media Forum, an Internet news portal, as follows:
“Today, the Prosecutor General ... provided an explanation concerning the criminal case instituted by the Ministry of National Security in respect of Eynulla Fatullayev, the editor-in-chief of Gündəlik Azərbaycan and Realny Azerbaijan newspapers, and stated that the Internet site [of the newspapers] had indeed contained information threatening acts of terrorism. According to Azadliq Radio, the Prosecutor General stated: 'The site mentions specific State facilities and addresses which would allegedly be bombed by the Islamic Republic of Iran. This information constitutes a threat of terrorism.' [He] noted that, in connection with this, the MNS had instituted criminal proceedings under Article 214.1 of the Criminal Code. The Prosecutor General stated that the MNS would shortly make a statement concerning the results of the investigation.”
37. Another Internet news portal, Day.Az, reported as follows:
“The Internet site of Realny Azerbaijan, founded by Eynulla Fatullayev, indeed contains a threat of terrorism. The Prosecutor General ... made this statement. According to him, the Internet site of Realny Azerbaijan mentions specific addresses of certain State facilities and asserts that, according to available information, they will be bombed by the Islamic Republic of Iran. 'This information constitutes a threat of terrorism. Therefore, the Ministry of National Security (the MNS) has instituted criminal proceedings under Article 214.1 of the Criminal Code and is taking investigative measures.' [The Prosecutor General] noted that the MNS would keep the public informed about the progress in the case...”
38. On 3 July 2007, by a decision of an MNS investigator, the applicant was formally charged with the criminal offences of threat of terrorism (Article 214.1 of the Criminal Code) and inciting ethnic hostility (Article 283.2.2 of the Criminal Code).
39. On the same day, 3 July 2007, pursuant to a request by the Prosecutor General's Office, the Sabail District Court remanded the applicant in custody for a period of three months in connection with this criminal case. The applicant appealed. On 11 July 2007 the Court of Appeal upheld the Sabail District Court's decision.
40. On 4 September 2007 the applicant was also charged with tax evasion under Article 213.2 of the Criminal Code on account of his alleged failure to duly declare taxes on his personal earnings as a newspaper editor.
41. During the trial, among other evidence, the prosecution produced evidence showing that in May 2007 the full electronic version of “The Aliyevs Go to War” had been forwarded by e-mail to the offices of a number of foreign and local companies in Baku. A total of eight employees of these companies testified during the trial that, after reading the article, they had felt disturbed, anxious and frightened. The court found that the publication of this article had pursued the aim of creating panic among the population. The court further found that, in the article, the applicant had threatened the Government with destruction of public property and acts endangering human life, with the aim of exerting influence on the Government to refrain from taking political decisions required by national interests.
42. On 30 October 2007 the Assize Court found the applicant guilty on all charges and convicted him of threat of terrorism (eight years' imprisonment), incitement to ethnic hostility (three years' imprisonment) and tax evasion (four months' imprisonment). The partial merger of these sentences resulted in a sentence of eight years and four months' imprisonment. Lastly, the court partially merged this sentence with the sentence of two years and six months' imprisonment imposed on the applicant in the previous criminal case, which resulted in a total sentence of eight years and six months' imprisonment. In imposing this final sentence, the court found that, on account of his previous convictions, the applicant was a repeat offender and assessed this as an aggravating circumstance. The court also ordered that 23 computers and several compact discs, previously seized as material evidence from the newspapers' offices, be confiscated in favour of the State. Lastly, the court ordered that AZN 242,522 (for unpaid taxes) and AZN 17,800 (for unpaid social security contributions) be withheld from the applicant.
43. On 16 January 2008 the Court of Appeal upheld the Assize Court's judgment of 30 October 2007.
44. On 3 June 2008 the Supreme Court upheld the lower courts' judgments.
45. In his defence speech at the trial and in his appeals to the higher courts, the applicant had complained, inter alia, of a breach of his presumption of innocence on account of the Prosecutor General's statement to the press, relying directly on Article 6 § 2 of the Convention. His arguments under the Convention in this respect had been summarily rejected.
46. It appears that, on an unspecified date during the period when the above-mentioned criminal proceedings were taking place, the publication and distribution of Gündəlik Azərbaycan and Realny Azerbaijan were halted, in circumstances which are not entirely clear from the material available in the case file.
47. Article 147 of the Criminal Code, in force at the relevant time, provided as follows:
“147.1. Defamation, that is, dissemination, in a public statement, publicly exhibited work of art or through the mass media, of knowingly false information discrediting the honour and dignity of a person or damaging his or her reputation,
shall be punishable by a fine in the amount of one hundred to five hundred conditional financial units, or by community service for a term of up to two hundred and forty hours, or by corrective labour for a term of up to one year, or by imprisonment for a term of up to six months.
147.2. Defamation by accusing [a person] of having committed a serious or especially serious crime
shall be punishable by corrective labour for a term of up to two years, or by restriction of liberty for a term of up to two years, or by imprisonment for a term of up to three years.”
48. Article 214.1 of the Criminal Code provided as follows:
“Terrorism, that is, perpetration of an explosion, arson or other acts creating a danger to human life or significant material damage or other grave consequences, if such acts are carried out for the purpose of undermining public security, frightening the population or exerting influence on the State authorities or international organisations to take certain decisions, as well as the threat to carry out the above-mentioned acts with the same purposes,
shall be punishable by deprivation of liberty for a term of eight to twelve years together with confiscation of property.”
49. Article 283 of the Criminal Code provided as follows:
“283.1. Acts aimed at incitement to ethnic, racial or religious hostility or humiliation of ethnic dignity, as well as acts aimed at restricting citizens' rights or establishing citizens' superiority on the basis of their ethnic or racial origin, if committed openly or by means of the mass media,
shall be punishable by a fine in the amount of one thousand to two thousand conditional financial units, or by restriction of liberty for a term of up to three years, or by imprisonment for a term of two to four years.
283.2. The same acts, if committed:
283.2.1. with the use of violence or the threat of use of violence;
283.2.2. by a person using his official position;
283.2.3. by an organised group;
shall be punishable by imprisonment for a term of three to five years.”
50. Under Article 449 of the Code of Criminal Procedure (“the CCrP”), an accused or suspected person can lodge a complaint against procedural steps or decisions of the prosecuting authorities (preliminary investigator, investigator, supervising prosecutor, etc.) with the court supervising the pretrial investigation. Article 449.3 of the CCrP provides that such a complaint may be lodged, inter alia, in the event of a violation of a detainee's rights.
51. Articles 450 and 451 of the CCrP provide for the procedure for examining such complaints and outline the supervising court's competence. In particular, under Article 451.1 of the CCrP, the supervising court may take one of the following two decisions in respect of a complaint under Article 449 of the CCrP: (a) declaring the impugned procedural step or decision lawful; or (b) declaring the impugned procedural step or decision unlawful and quashing it. Article 451.3 of the CCrP provides that in the event of a finding that the impugned step or decision is unlawful, the prosecutor supervising the investigation or a superior prosecutor is to take immediate measures aimed at stopping the violations of the complainant's rights.
52. Chapter 27 of the Code of Civil Procedure (“the CCP”), consisting of Articles 296-300, provides for the procedure for examining civil lawsuits concerning decisions and acts (or omissions) of “the relevant executive authorities, local self-administration authorities, other authorities and organisations and their officials”. In particular, in accordance with Article 297.1 of the CCP, decisions and acts (or omissions) covered by this procedure include those which violate a person's rights or freedoms, impede a person's exercise of his or her rights or freedoms, or impose an unlawful obligation or liability upon a person.
53. The relevant provisions of the Law on Courts and Judges of 10 June 1997, in force before the amendments adopted on 28 December 2004, and the relevant domestic law concerning the status and composition of the Judicial Legal Council, in force prior to the enactment of the Law on the Judicial Legal Council of 28 December 2004, are summarised in Asadov and Others v. Azerbaijan ((dec.), no. 138/03, 12 January 2006).
54. Law No. 817-IIQD on Additions and Amendments to the Law on Courts and Judges, of 28 December 2004 (“Law No. 817-IIQD”), in force from 30 January 2005, introduced a number of amendments concerning, inter alia, the process for the selection and appointment of candidates for judicial office, terms of office of judges, the code of judicial ethics, disciplinary procedures in respect of judges and the immunity of judges. Specifically, Articles 93-1 to 93-4 of the Law on Courts and Judges, as amended by Law No. 817-IIQD, provide that candidates for judicial office are selected by the Judge Selection Committee, established by the Judicial Legal Council, according to a procedure involving written and oral examinations and long-term training courses where each candidate's performance is subsequently graded by the Judge Selection Committee. In accordance with Article 96 of the Law on Courts and Judges, as amended by Law No. 817-IIQD, judges are initially appointed for a five-year term and, during this term, must attend a judicial training course at least once. If following the initial five-year term no professional shortcomings are detected in the judge's work, he or she is reappointed to an indefinite term of office (expiring at the age of 65 or, in exceptional cases, 70) pursuant to a recommendation by the Judicial Legal Council. Prior to the latter amendment, judges were appointed for fixed terms of five or ten years, depending on the court in which they served.
55. Clause 1 of the Transitional Provisions of Law No. 817-IIQD provided as follows:
“The terms of office of judges of the courts of the Republic of Azerbaijan who were appointed before 1 January 2005 shall expire on the date of the appointment of new judges to those courts ...”
56. The Law on the Judicial Legal Council of 28 December 2004 provides that the Judicial Legal Council has 15 members (including representatives of the executive and legislative authorities, judges of various courts, and representatives of the prosecution authorities and the Bar Association) and is a body competent to organise the process of selecting candidates for judicial office and submitting recommendations to the President on judicial appointments, and to perform other tasks including organising training courses for judges, providing logistical support to the courts and taking disciplinary measures against judges.
57. The following are extracts from Resolution 1614 (2008) of the Parliamentary Assembly of the Council of Europe on the functioning of democratic institutions in Azerbaijan:
“19. As regards freedom of expression, the Azerbaijani authorities should:
19.1. initiate the legal reform aimed at decriminalising defamation and revise the relevant civil law provisions to ensure respect for the principle of proportionality, as recommended in Resolution 1545 (2007); in the meantime, a political moratorium should be reintroduced so as to put an end to the use of defamation lawsuits as a means of intimidating journalists ...”
58. The following are extracts from the report by the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg, on his visit to Azerbaijan, from 3 to 7 September 2007 (CommDH(2008)2, 20 February 2008):
“B. A matter of urgency: the decriminalisation of defamation
69. At the time of the Commissioner's visit, it was reported that there were seven journalists in prison, out of whom four were for libel or defamation under Articles 147 and 148 of the Criminal Code. Both international monitoring bodies and local NGOs claimed that charging individuals for defamation was used as a means to avoid the dissemination of news that could be detrimental to high-ranking officials or to other influential people. According to the parliamentary assembly of the Council of Europe rapporteurs, the number of charges has grown in the last few years. Out of fear of imprisonment journalists are compelled to resort to self-censorship. In 2005, the President, Mr Ilham Aliyev had called for abandoning the use of criminal provisions in matters of defamation, but this was not respected. Some cases, which the Commissioner was informed about point to abusive or unfair imprisonment of journalists.
70. ... Indeed, many journalists remain incarcerated. Mr Eynulla Fatullayev, who was held at the pre-trial detention centres on the premises of the Ministry for National Security is still incarcerated. This journalist had criticised the authorities' and armed forces' conduct during the siege of Khojaly. His critical analysis of the handling of the crisis cost him a two and half year sentence for libel. Furthermore, in a concerning stacking of incriminations, he was sentenced on 30 October 2007 to an additional eight and a half years, this time on charges of terrorism and incitement to racial hatred. When this journalist met the Commissioner, he said that the fact that he had been jailed was evidence of political pressure on him as a journalist. After the decision on this second sentence, he reiterated this comment. The Commissioner mentioned his imprisonment for libel to the authorities and called for his immediate release. The Commissioner once again urges the authorities to release Mr Eynulla Fatullayev.
71. The authorities' response to questions regarding this issue is that actions against journalists are caused by their lack of professionalism, which leads them to writing in a non-responsible manner and ignoring their legal and ethical duties. There should indeed be proper training and education of journalists, who have a responsibility in the exercise of their profession and should follow a code of ethics in line with European standards. At the same time, officials should allow easy access to information and accept criticism inherent to their position of accountability in society.
72. Nevertheless, the fundamental issue here is whether people, in particular but not only journalists, should be deprived of liberty and other criminal law consequences on account of views expressed. The supplementary issue, as already dealt with, is whether, where it still exists as an offence under criminal law, as it is the case in Azerbaijan, the prosecution of defamation does not in fact lead to instances of abusive prosecution and/or excessive sentences. There is clearly a general trend to move towards a decriminalisation of defamation in Europe today. International standards allow the penalisation of defamation through criminal law but only in cases of hate speech directly intended at inciting violence. To corroborate the requirement of intention, there has to be a direct link between the intention and the likeliness of the violence. ... In most countries, the criminal route is not used: there is a moratorium on such laws. The criminalisation of defamation has a chilling effect on freedom of expression. The legal framework in Azerbaijan provides for a wide range of possibilities for criminalisation, notably for 'damage to honour and reputation'. Work on a draft law on defamation has been going on for more than a year, involving a working group of parliamentarians and media experts, with the support of the OSCE. Emphasis would be shifted from criminal law to civil law.
73. The Commissioner was encouraged by talks he had on this issue with the Minister of Justice. He recommends the launching of an open public debate that would help define a rights-based approach that would remove defamation from the criminal books and offer alternative protection to other rights and interests. Council of Europe experts could provide assistance in that respect. In order to support the holding of that debate, the President could reiterate his 2005 declaration on a moratorium on the use of the criminal provision. The Commissioner recommends, as a first step, the release of all those, who have been criminally prosecuted under the relevant provisions of the criminal code.”
59. Most of the facts of the reported massacre of Azerbaijani civilians in Khojaly are contested by the Azerbaijani and Armenian sides. As for thirdparty sources, the following are extracts from reports of international organisations and human-rights NGOs concerning these events.
60. The background paper prepared by the Directorate General of Political Affairs of the Council of Europe, appended to the report by the Parliamentary Assembly's Political Affairs Committee on the conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference (rapporteur Mr D. Atkinson, 29 November 2004, Doc. 10364), states:
“In February 1992, almost day-to-day four years after the Sumgait events, the ethnic Armenian forces attacked the only airport in [Nagorno-Karabakh], in Khojali, to the North of the local capital. At the time, the population of Khojali was 7000. The Azerbaijani view is that the taking of Khojali, which left some 150 defenders of the airport dead, was followed by unprecedented brutalities against the civilian population. In one day, reportedly 613 unarmed people were massacred and close to 1300 were captured – many of them while trying to flee through an alleged humanitarian corridor. The Armenian side contests this view and the number of casualties.
The Khojali massacre sparked an exodus of Azerbaijanis and precipitated a political crisis in Baku. Five years later, in 1997, President Aliyev issued a Decree referring to the tragedy as the 'Khojali genocide'.”
61. The following are extracts from the Human Rights Watch World Report 1993 on the former Soviet Union:
“During the winter of 1992, Armenian forces went on the offensive, forcing almost the entire Azerbaijani population of the enclave to flee, and committing unconscionable acts of violence against civilians as they fled. The most notorious of these attacks occurred on February 25 in the village of Khojaly. A large column of residents, accompanied by a few dozen retreating fighters, fled the city as it fell to Armenian forces. As they approached the border with Azerbaijan, they came across an Armenian military post and were cruelly fired upon. At least 161 civilians are known to have been murdered in this incident, although Azerbaijani officials estimate that about 800 perished. Armenian forces killed unarmed civilians and soldiers who were hors de combat, and looted and sometimes burned homes.”
62. The Memorial Human Rights Centre, based in Moscow, dispatched its observers to Nagorno-Karabakh during the war. The following are extracts from the report by the Memorial Human Rights Centre “On Mass Violations of Human Rights in Connection with the Armed Capture of the Town of Khojaly on the Night of 25 to 26 February 1992” (translated from Russian):
“As practically all refugees from Khojaly claimed, military personnel from the 366th Regiment took part in the assault on the town. According to the information received from the Armenian side, combat vehicles of the 366th Regiment which took part in the assault on the town shelled Khojaly but did not actually enter the town. As the Armenian side asserts, the participation of the military personnel [from the 366th Regiment] was not sanctioned by a written order from the Regiment's command. ...
Part of the population started to leave Khojaly soon after the assault began, trying to flee in the direction of Agdam. There were armed people from the town's garrison among some of the fleeing groups. People left in two directions: (1) from the eastern side of the town in the north-east direction along the river, passing Askeran to their left (this specific route, according to Armenian officials, was provided as a 'free corridor'); (2) from the northern side of the town in the north-east direction, passing Askeran to their right (it appears that a smaller number of refugees fled using this route). Thus, the majority of civilians left Khojaly, while around 200-300 people stayed in Khojaly, hiding in their houses and basements. As a result of the shelling of the town, an unascertained number of civilians were killed on the territory of Khojaly during the assault. The Armenian side practically refused to provide information about the number of people who so perished. ...
According to the officials of the NKR [the self-proclaimed 'Nagorno-Karabakh Republic'], a 'free corridor' was provided for fleeing civilians..., which began at the eastern side of the town, passed along the river and continued to the north-east, leading to Agdam and passing Askeran to its left. ... According to the officials of the NKR and those taking part in the assault, the Khojaly population was informed about the existence of this 'corridor' through loudspeakers mounted on armoured personnel carriers. ... NKR officials also noted that, several days prior to the assault, leaflets had been dropped on Khojaly from helicopters, urging the Khojaly population to use the 'free corridor'. However, not a single copy of such a leaflet has been provided to Memorial's observers in support of this assertion. Likewise, no traces of such leaflets have been found by Memorial's observers in Khojaly. When interviewed, Khojaly refugees said that they had not heard about such leaflets. In Agdam and Baku, Memorial's observers have interviewed 60 persons who had fled Khojaly during the assault on the town. Only one person out of those interviewed said that he had known about the existence of the 'free corridor' (he had been told about it by a 'military man' from the Khojaly garrison). ... Several days prior to the assault, the representatives of the Armenian side had, on repeated occasions, informed the Khojaly authorities by radio about the upcoming assault and urged them to immediately evacuate the population from the town. The fact that this information had been received by the Azerbaijani side and transferred to Baku is confirmed by Baku newspapers (Bakinskiy Rabochiy). ...
A large column of inhabitants [of Khojaly] rushed out of town along the river (route 1 – [see above]). There were armed people from the town garrison in some of the groups of refugees. These refugees, who walked along the 'free corridor'..., were fired upon, as a result of which many people were killed. Those who remained alive dispersed. Running [refugees] came across Armenian military posts and were fired upon. Some refugees managed to escape to Agdam, some, mainly women and children (the exact number is impossible to determine), froze to death while wandering around in mountains, some ... were captured ... The site of the mass killing of refugees, as well as their corpses, was filmed on videotape when the Azerbaijani units carried out an operation to evacuate the corpses to Agdam by helicopter. ... Among the corpses filmed on the videotape, the majority were those of women and elderly people; there were also children among those killed. At the same time, there were also people in uniform among those killed. ... Within four days, about 200 corpses were evacuated to Agdam. A few score of corpses bore signs of mutilation. ...
Official representatives of the NKR and members of the Armenian armed forces explained the death of civilians in the zone of the 'free corridor' by the fact that there were armed people fleeing together with the refugees, who were firing at Armenian outposts, thus drawing return fire, as well as by an attempted breakthrough by the main Azerbaijani forces. According to members of the Armenian armed forces, the Azerbaijani forces attempted to battle through from Agdam in the direction of the 'free corridor'. At the moment when the Armenian outposts were fighting off this attack, the first groups of Khojaly refugees approached them from the rear. The armed people who were among the refugees began firing at the Armenian outposts. During the battle, one outpost was destroyed ..., but the fighters from another outpost, of whose existence the Azerbaijanis were unaware, opened fire from a close distance at the people coming from Khojaly. According to testimonies of Khojaly refugees (including those published in the press), the armed people inside the refugee column did exchange gunfire with Armenian outposts, but on each occasion the fire was opened first from the Armenian side. ...”
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