Information Note on the Court’s case-law 264
Judgment 7.7.2022 [Section V]
Absence of real and immediate risk to life of well-known writer, subject of a religious fatwa with no subsequent threats or intimidation, fatally stabbed by unknown person: violation
Facts – The applicant’s husband was a well-known writer and columnist. In November 2006 he published an article entitled “Europe and us” which expressed critical views about Islam. Following the article’s publication, the applicant’s husband was publicly criticised by various Azerbaijani and Iranian religious figures and groups. In particular, that same month, a prominent religious figure of Iran issued a religious fatwa calling for the applicant’s husband’s death. The article also triggered protests in Iran in front of the Azerbaijani embassy and consulate. The applicant’s husband was subsequently convicted of a criminal offence in relation to the article (incitement to ethnic, racial, social or religious hatred and hostility, committed publicly or by use of the mass media), the criminal proceedings of which were subject to the Court’s judgment in Tagiyev and Huseynov v. Azerbaijan. In December 2007, he received a presidential pardon and was released from prison.
The applicant’s husband continued to collaborate with various newspapers and journals after his release and, on 10 November 2011, published an article entitled “Iran and the inevitability of globalisation”, criticising the religious and totalitarian nature of the Iranian State and its global policy. On 19 November 2011, the applicant’s husband was stabbed by an unknown person. He died several days thereafter. Criminal proceedings were instituted immediately after the stabbing, but suspended two years later owing to the inability to identify the perpetrators of the crime.
Law – 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.
(See also Huseynova v. Azerbaijan, 10653/10, 13 April 2017, Legal Summary; Tagiyev and Huseynov v. Azerbaijan, 13274/08, 5 December 2019, Legal Summary; Shuriyya Zeynalov v. Azerbaijan, 69460/12, 10 September 2020)