Murderous attack on a columnist because of hi critical religious views. Denying the widow access to the case file violated the procedural aspect of Article 2 of the ECHR
JUDGMENT
Tagiyeva v. Azerbaijan 07.07.2022 (app. no. 72611/14)
SUMMARY
The applicant, Maila Bulud gizi Tagiyeva, is a citizen of Azerbaijan who was born in 1964 and lives in Baku.
The case concerns the death of her husband, Rafig Tagiyev, after he was stabbed on 19 November 2011. The applicant’s husband was a well-known writer and columnist. He was particularly known for his critical views on Islam. After the publication of his article “Europe and Us” he was publicly criticized by various religious figures and groups in Azerbaijan and Iran. A religious fatfa (in the Islamic faith is a non-binding but authoritative legal opinion or didactic interpretation that a Sheikhul Islam, qualified jurist or mufti, can rule on matters related to Islamic law) was issued in Iran in 2006 calling for his death. The investigation into his murder was suspended in 2013 because it was not possible to identify the perpetrator. The domestic courts rejected all of the applicant’s subsequent appeals against this decision.
Relying on Articles 2 (right to life), 10 (freedom of expression) and 13 (right to an effective remedy), the applicant complained that the State had failed to take the necessary measures to protect her husband’s right to life, that the criminal investigation into that his assassination was ineffective, and that he was targeted and censored because of his publications.
The Court examined the Article 2 complaint on both its substantive and procedural aspects. As regards the substantive aspect, the Court found that there was no material in the file to show that at the relevant time the authorities were aware of the danger to the applicant’s husband’s life or that they had any information which could lead to such a possibility, so they could not know that he was in real danger of life. Therefore, it found no violation of Article 2 as to its substantive part. On the procedural aspect, the ECtHR noted that although the applicant had been granted victim status during the investigation into her husband’s death, the investigating authorities had repeatedly denied her access to the case file. This had deprived the applicant of the opportunity to protect her legal interests.
The ECtHR found a violation of Article 2 as regards the procedural part.
The Court awarded the applicant 12,000 euros for moral damage and 2,000 euros for costs.
PROVISIONS
Article 2
Article 10
Article 13
PRINCIPAL FACTS
Rafig Tagiyev, a physician by profession, was a well-known writer and columnist. He collaborated with various newspapers and journals writing under the pen name Rafig Tagi. He wrote articles, essays and columns relating to various social issues, including the place of religion in society and its dissemination as a political ideology. In this respect, he was very critical of the influence of Iran in Azerbaijan and in the world.
On 1 November 2006 an article entitled “Europe and us” (“Avropa və biz”) and signed by him was published in the Sanat Gazeti newspaper. It was one of various articles written in a series of “East-West studies” by the author, who expressed critical views about Islam.
Following the publication of the article, Rafig Tagiyev was publicly criticised by various Azerbaijani and Iranian religious figures and groups. In particular, in November 2006 one of the prominent religious figures of Iran, Ayatollah Muhammad Fazel Lankarani, issued a religious fatwa calling for the applicant’s death. The publication of the article also triggered protests in Iran in front of the Azerbaijani embassy and consulate.
The applicant indicated in her original application lodged with the Court that in November 2006 Rafig Tagiyev and his family had been placed under police protection for security reasons and they had been obliged to change their place of residence.
On 11 November 2006 criminal proceedings were instituted against Rafig Tagiyev and the editor-in-chief of the Sanat Gazeti newspaper for publication of the above-mentioned article.
On 4 May 2007 the Sabayil District Court found Rafig Tagiyev guilty under Article 283.1 (incitement to ethnic, racial, social or religious hatred and hostility, committed publicly or by use of the mass media) of the Criminal Code and sentenced him to three years’ imprisonment. The domestic proceedings concerning the conviction of Rafig Tagiyev have already been the subject of the Court’s judgment in Tagiyev and Huseynov v. Azerbaijan (no. 13274/08, 5 December 2019).
On 28 December 2007 Rafig Tagiyev was dispensed by a presidential pardon decree from serving the remainder of his sentence and was released from prison.
The applicant indicated in her original application lodged with the Court that the security arrangements which had been established for protection of Rafig Tagiyev prior to his imprisonment had been terminated on the date of his imprisonment and they had not been re-established upon his release from prison.
THE DECISION OF THE COURT…
Article 2:
(a) Substantive aspect – The Court considered the religious fatwa about the applicant’s husband that had been issued following the publication of his article “Europe and us” and the protests that had ensued. It did not exclude that in some circumstances, a fatwa issued by a religious figure, holding a considerable religious and political influence on a community, might trigger the State’s duty to act by taking preventive operational measures. However, the Court was not convinced that in the particular circumstances of the present case the authorities had known or ought to have known at the relevant time, namely in the days preceding 19 November 2011, of the existence of a real and immediate risk to the life of the applicant’s husband from the criminal acts of a third party, solely on the basis of above-mentioned information.
There was no material in the case file indicating that at the relevant time the law-enforcement authorities had been aware of the danger to the life of the applicant’s husband or had held any information which might have given rise to such a possibility. Amongst other things, the applicant’s husband had never applied to the domestic authorities or informed them of any danger or threat to his life before his stabbing. He had neither received any verbal threat nor been subjected to any kind of intimidation, let alone physical violence, in connection with his publications following his release from prison. The Court also could not overlook the applicant’s husband’s statements before his death in which he had not referred to the religious fatwa or protests, but to his 2011 article, while indicating that he had not received any threat following its publication.
For those reasons, there was no basis on which to conclude that the domestic authorities had known or ought to have known at the relevant time of the existence of a real and immediate risk to the life of the applicant’s husband.
Conclusion: no violation (unanimously).
(b) Procedural aspect – There had been no shortcomings as might call into question the overall adequacy of the investigation conducted by the domestic authorities into the death of the applicant’s husband. However, although the applicant had been granted victim status in the investigation, the investigating authorities had repeatedly denied her access to the case file. The relevant domestic law provided no right of access, a situation the Court found to be unacceptable. That situation had deprived the applicant of the opportunity to safeguard her legitimate interests and had prevented sufficient scrutiny of the investigation by the public. Accordingly, the investigation had been ineffective as it had lacked an important guarantee, that of the involvement of the deceased person’s family.
Conclusion: violation (unanimously).
Article 41: EUR 12,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.
